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

When one spouse suspects the other of having an affair, the knee jerk reaction is to hire a private detective to get the"smoking gun.” It is permissible to hire a detective to “snoop around” even when the spouse having the affair has an obtained an order of protection against the other.

“The hiring of a professional licensed private investigator in a matrimonial action to gather evidence is for a proper and legitimate purpose.”   Anonymous v Anonymous

According to the Court opinon:

The husband had the right to gather evidence up to the date of trial in defense of the matrimonial action and in support of his own counterclaims. The husband was not required to accept that the wife had necessarily ceased her extramarital affair merely upon her assurance to him that she had. In fact, such representation proved to be false as the wife does not controvert that the private investigator disclosed as the result of his investigation that she was continuing to have an affair with Father L. Under the circumstances, the hiring of the private investigator, in and of itself, was not an unlawful intrusion upon the rights of the wife secured by the order or protection.

While obtaining proof of the affair is not objectionable, what you do with it can be problematic. In Anonymous, the husband reluctantly turned over the video of his wife having an affair with the priest to the church-the church wished to investigate the scandalous allegations. But, if the husband had the wife followed and recorded by a private investigator for the purpose of gathering embarrassing material to deliver to her employer with the intention to cause her to lose her employment his conduct according to the court could be considered harassment –“conduct which alarms or seriously annoys another person, and serves no legitimate purpose.”

In sum, it is permissible to obtain surveillance tapes to be used as evidence in court. The surveillance “evidence” cannot be used to simply to embarrass a party or to cause them, for instance, to lose their job without possible consequences.
 

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Couples who refer to themselves as 'we' are happier than those who say 'I', 'me' or 'you.”

The study conducted at the University of California at Berkley, found a link between the use of pronouns and marital happiness. According to the study, reported in the Daily News and in the Domestic Diversions blog, middle-aged and older couples who used words like “we” and “us” when discussing their marital disagreements experienced less stress than those couple who used the words “I” “me” and “you.”

Not surprisingly, more older couples than middle aged ones identified themselves as “we;” shared life experiences, birth, death and other milestones, probably gave the more senior couples a greater sense of shared identity.

According to the Daily News, earlier studies have shown that “we-ness” versus “me-ness” is a strong indicator of how happy younger couples are.

It would be interesting to see if the pronoun/identity factor is predictive of divorce. Do couples who team up to become a “we” stay together? Conversely, do couples who become polarized “me’s” divorce?
 

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Last week, the New York Times ran a blistering editorial about New York’s antiquated divorce law. New York remains the only state in the nation that does not have a no-fault or an irreconcilable differences grounds for divorce.

In New York, someone seeking a divorce has to prove that their spouse is guilty of marital fault, that is their spouse committed adultery, treated them in a way that is cruel and inhuman, abandoned them or has been imprisoned. A divorce is also available if the parties have been legally separated for one year.

The absence of a no fault divorce has severe repercussions:

The current rules inflict serious financial and emotional costs. Litigants end up spending thousands of dollars in unnecessary legal fees, and courts devote significant time to airing the painful and highly personal details of a breakup. It is a ridiculous use of judicial resources at any time, but especially in tough fiscal times.

As the Times concludes, the failure to recognize no fault divorce does not save marriages, it just makes it more painful and expensive to end them. Moreover, as I discussed last week, the judicial system also pays a price as judges are forced to turn a blind eye to litigant’s contrived tales of marital fault.

The time has come for New York  to join the rest of the nation and permit a no-fault grounds of divorce.
 

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The absence of no fault divorce in New York has many unintended and unfortunate consequences. Perhaps the single most disturbing consequence is that divorce courts are forced to accept as true, testimony known to be false. That is, as one trial judge, recently pointed out, “it forces judges and special referees who preside over these cases to in effect turn a blind eye — or at least a myopic one — to what is technically perjury.”

In the case of Andrew T. v. Yanna T, the husband was granted an uncontested divorce from his wife on the ground of constructive abandonment- simply stated, the wife’s unjustified refusal to engage in sex for one year preceding the commencement of the divorce. Problems arose because before the divorce was granted the Wife gave birth to a child, which had to be conceived during the period when the parties were allegedly not having sex; the husband claimed he was the father.

Had the case been brought in any other state, a no-fault ground could have been alleged with no fault being assigned. But because New York does not recognize no-fault divorce, litigants are forced to assign blame and, most often, allege that they have been constructively abandoned by their spouse. As noted by the Court, herein is the problem:

. . .when the ground is utilized there is quite often a wide discrepancy between what is said to obtain the divorce and what really has taken place between the parties in the privacy of the marital bedroom.. . .

Although perjury of any kind is not to be condoned, the context in which it arises must be taken into consideration. The sad truth is that New York's insistence on fault-based divorce ends up promoting a disregard for the truth by "fostering and encouraging the embellishment of a spouse's wrongdoing as to grounds, often with immeasurable effects upon a divorcing household.

The problem takes us down a slippery slope. How can a court condone permitting perjury to make out marital fault in divorce but not in other circumstances? Why is it ok to lie about a constructive abandonment, but not the family finances?

The fix is easy. The legislature should recognize a no fault grounds for divorce and then there will be no need for courts to ever condone perjury.

 

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Break-ups were always difficult, but, with the advent of social networking, breaking up is now really hard to do.

It used to be a getting a key to your lover’s apartment or a drawer in a dresser was a sign of commitment. When you broke up, you packed up your toothbrush and simply returned the key.

Now, a sign of commitment is exchanging passwords to email or online accounts (both social and financial). In addition, part of the evolution of a relationship entails becoming Facebook friends with your significant other’s friends.

As Laura Holson points out in her article in the New York Times, as every aspect of a relationship has moved online, the whole idea of break up has changed.

Where once a spurned lover could use scissors (literally) to cut an ex out of the picture, digital images of the smiling couple in happier days abound on the Web and are difficult to delete. Status updates and tweets have a way of wending their way back to scorned exes, thanks to the interconnectedness of social media. And breakups, awkward and drawn-out in person, are even more so online as details are parsed by the curious, their faces pressed against the digital glass.

It is common sense that following a break up of a relationship or the commencement of a divorce, passwords to bank and email accounts should be changed. Clearly, you would not want communications from your divorce lawyer discussing strategy to be read by your soon to be ex.

Unfettered access can also be used as a weapon. Just yesterday, when in court, I heard testimony in a case of cyber stalking, where one “heart broken” party possessed passwords to his ex’s personal and business accounts and was being accused of attempting to delete and hide important online files.

Just imagine all the ways a scorned lover could destroy someone’s personal and professional reputation armed with unfettered access to someone’s twitter, Facebook and email accounts.

As Holson points out, “A byproduct of the digital revolution is that trust is being assigned a new meaning.” Given the potential for damage and embarrassment, before sharing passwords, trust should yield to caution.
 

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Nothing says I hate your spouse better than a gift certificate to consult with a divorce attorney.

Bruce Carton in the Law Blog Watch, reports that one London law firm, Lloyd Platt & Company, is offering a gift voucher that entitles the bearer to a consultation with a divorce lawyer. The consultation touches upon "all the practical options available to them -- divorce being only one of the options.”

While this is an ingenious marketing ploy, I can only imagine the fireworks at the family gathering when this gift is eventually opened. At a minimum, it will make for a holiday dinner no one will soon forget.
 

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The success or lack of success of a marriage is apparently now statistically predictable. Since is it predictable, it may soon be possible to insure a marriage against divorce.

MyNewMarkets.com reports that J. Christopher Westland, a professor of information and decision sciences, at the University of Illinois at Chicago, through an analysis of census data, has identified several factors that influence the likelihood of divorce. According to Professor Westland, the factors that put a marriage at risk include:

“Age (younger is riskier); race (Asian is the lowest risk); whether a woman had forced premarital sex (a woman who has been raped has about a 50 percent higher risk of divorcing in the first five years of marriage), and income and education (those with more have less risk).

Divorce insurance would cover the costs of divorce, presumably the legal fees and related expenses. It would not cover the terms of the settlement or the judgment.

With 50% of marriages ending in divorce, insurance companies would be paying out on half of the policies written. Therefore, the insurance would not be cheap.

Still, the question remains would a divorce insurance contract violate public policy. Contracts that promote divorce may be illegal and be unenforceable.

Even if found to be legal, divorce insurance maybe an unnecessary luxury product. Pre-marriage divorce planning may be sufficient to mitigate the economic costs of divorce. Pre and post nuptial agreements can make provision for the distribution of property and the payment of maintenance. Keeping “separate property” separate from marital property will immunize it from a spouse’s equitable distribution claims. All of these precautions would minimize the legal fees in the event of divorce.

 

 

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There has been much ado, of late, about how text messages are the new lipstick stain on the collar-the telltale sign of an adulterous relationship. Indeed, both  Laura Holson in the  New York Times and David Wright on  Nightline did stories about this phenomenon, which has recently brought down Tiger Woods, Mayor Khame Kilpatrick of Detroit and Senator John Ensign.

For some reason, people feel immune when embracing a new technology – they feel that their use of it for illicit conduct will not be discovered. Texting a lover on a portable device that may be left on your night-table or a kitchen counter for a spouse to innocently discover is an invitation for disaster. For example, as detailed in the Times:

Doug Hampton, a longtime friend and employee of Senator Ensign’s, said recently on the ABC show “Nightline” that he was alarmed after he had borrowed Mr. Ensign’s cell phone in late 2007 to call his wife, Cynthia Hampton, and found her listed as “Aunt Judy.” Mr. Hampton said he found an incriminating text message and confronted the pair about their affair at a Christmas dinner soon after.

People naively think that text messages are not discoverable. The wireless carriers may keep records of messages for a long period after they are sent. Moreover, the person receiving the text may preserve the message for their own purposes. Indeed, Tiger Woods has learned that his lovers are using his messages to them to secure their fifteen messages of fame.

But, in the end, text messages are just the latest tool in the arsenal to catch cheating spouses. Telephone records, emails and charge card receipts have long provided clues to affairs. E-Z passes and Metro-card, too, provide a time stamped trail of where someone has been. It is only time until some spouse finds his significant other “tagged” in an embrace or some other compromising position on someone’s Facebook page.

In the end, the best way to ensure that you do not get caught in an extra marital affair is not to have one.
 

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The holidays can be one of the most stressful times.  There are financial and familial demands.  The stress and pressure can become unbearable and lead to depression.  

The Mayo Clinic offers ten tips into dealing with holiday stress. 

1. Acknowledge your feelings. If someone close to you has recently died or you can't be with loved ones, realize that it's normal to feel sadness and grief. It's OK to take time to cry or express your feelings. You can't force yourself to be happy just because it's the holiday season.

2. Reach out. If you feel lonely or isolated, seek out community, religious or other social events. They can offer support and companionship. Volunteering your time to help others also is a good way to lift your spirits and broaden your friendships.

3. Be realistic. The holidays don't have to be perfect or just like last year. As families change and grow, traditions and rituals often change as well. Choose a few to hold on to, and be open to creating new ones. For example, if your adult children can't come to your house, find new ways to celebrate together, such as sharing pictures, emails or videotapes.

4. Set aside differences. Try to accept family members and friends as they are, even if they don't live up to all your expectations. Set aside grievances until a more appropriate time for discussion. And be understanding if others get upset or distressed when something goes awry. Chances are they're feeling the effects of holiday stress and depression too.

5. Stick to a budget. Before you go gift and food shopping, decide how much money you can afford to spend. Then stick to your budget. Don't try to buy happiness with an avalanche of gifts. Try these alternatives: Donate to a charity in someone's name, give homemade gifts or start a family gift exchange.

6. Plan ahead. Set aside specific days for shopping, baking, visiting friends and other activities. Plan your menus and then make your shopping list. That'll help prevent last-minute scrambling to buy forgotten ingredients. And make sure to line up help for party prep and cleanup.

7. Learn to say no. Saying yes when you should say no can leave you feeling resentful and overwhelmed. Friends and colleagues will understand if you can't participate in every project or activity. If it's not possible to say no when your boss asks you to work overtime, try to remove something else from your agenda to make up for the lost time.

8. Don't abandon healthy habits. Don't let the holidays become a free-for-all. Overindulgence only adds to your stress and guilt. Have a healthy snack before holiday parties so that you don't go overboard on sweets, cheese or drinks. Continue to get plenty of sleep and physical activity.

9. Take a breather. Make some time for yourself. Spending just 15 minutes alone, without distractions, may refresh you enough to handle everything you need to do. Take a walk at night and stargaze. Listen to soothing music. Find something that reduces stress by clearing your mind, slowing your breathing and restoring inner calm.

10. Seek professional help if you need it. Despite your best efforts, you may find yourself feeling persistently sad or anxious, plagued by physical complaints, unable to sleep, irritable and hopeless, and unable to face routine chores. If these feelings last for a while, talk to your doctor or a mental health professional.
 

Most of all, have a wonderful thanksgiving. 

 

 

 

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Because New York remains the only state in the country that does not provide for a no-fault divorce, creative lawyers have been forced to “push the envelope” to develop theories using the statutorily recognized grounds of divorce-abandonment, adultery, cruel and inhuman treatment, imprisonment, and constructive abandonment.

In one recent case, the wife alleged that she had been “socially abandoned” by her husband. In Davis v. Davis, the wife of 41 years claimed that her husband:

. . .refused to engage in social interaction with the wife by refusing to celebrate with her or acknowledge Valentine's Day, Christmas, Thanksgiving, and the wife's birthday, by refusing to eat meals together, by refusing to attend family functions or accompany the wife to movies, shopping, restaurants, and church services, by leaving her once at a hospital emergency room, by removing the wife's belongings from the marital bedroom, and by otherwise ignoring her.

The Second Department, however, ruled that a social abandonment does not constitute a grounds for divorce. In order to constitute abandonment, there must be an actual abandonment, a lock out of the plaintiff by the defendant, or a constructive abandonment. A constructive abandonment has:

“. . .been routinely defined as the refusal by a defendant spouse to engage in sexual relations with the plaintiff spouse for one or more years prior to the commencement of the action, when such refusal is unjustified, willful, and continual, and despite repeated requests for the resumption of sexual relations.”

The Court engaged in an exhaustive explanation as to why a social abandonment should not be recognized as a divorce grounds. Perhaps the most interesting reason given was that it would burden the courts with fact finding. Since there would be no bright line as to the appropriate level of “social intercourse,” courts would be forced to engage in a case by case analysis to determine if a social abandonment had occurred. The determination would involve consideration of “family events, meals, holidays, religious activities, spousal expectations, cultural differences, and communications.”

If however, New York recognized a no-fault or an “irreconcilable differences” grounds for divorce, courts could be divested of the need to consider grounds issues. This point was not lost on the Appellate Division, which concluded that:

The interest of the matrimonial bar is borne of its frustration that New York is the only state that requires a finding of fault or the living apart of spouses as a basis for divorce. . . The New York State Matrimonial Commission determined that contesting matrimonial fault is costly to both litigants and the judiciary. An appellate recognition of social abandonment would be a significant leap, in the view of some, toward no-fault divorce in New York, either de facto or de jure. While we are sensitive to the desire of many for a reformation of matrimonial litigation in New York including, but not limited to, the enactment of no-fault divorce grounds, this case cannot provide the vehicle for that goal.

 

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A recent study found that women who were told they had a serious illness were seven times as likely to become separated or divorced as men with similar health problems.

 

Tara Parker-Pope reports in the Well Blog that:

When the man became ill, only 3 percent experienced the end of a marriage. But among women, about 21 percent ended up separated or divorced. Among couples who split up, divorce occurred, on average, about six months after the diagnosis, although there was wide variability in the timing.

It seems that men run away when health issues arise affecting their spouse, whereas women “hunker down” and deal with the issues. This finding is even more pronounced when the pre-diagnosis “heath of the marriage” is considered.

If couples are happy before the diagnosis, it appears that men are more likely to abandon wives who become seriously ill. If couples are already troubled before a partner becomes ill, the finding suggests that women in unhappy marriages are less likely to proceed with a divorce if their husbands become ill.

The study made no conclusion as to the reason for this phenomenon. A possible explanation could fall along the traditional or stereotypical roles of men and women in a marriage. Wives are typically the nurturers and caregivers in the relationship, whereas husbands are not. However, this theory fails to explain why men abandon an otherwise happy relationship after the diagnosis of a serious  illness.
 

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I have long felt that since money and money issues are the leading cause of divorce, the economic health of a marriage is a good barometer of the overall health of marriage. Ron Lieber, in his “Your Money” column in the New York Times identifies five, often unanticipated, economic stressors capable of destroying even the strongest of marriages.

Often, the tensions brought on by financial issues have been exacerbated by a failure of communication. The parties may be foreclosed from solutions that may have been available if both the husband and the wife were “in the loop” and working together as a team.

Still, the types of problems that could destroy even the strongest of marriages can be classified as follows:

1. Reduced Circumstances.

Every long term marriage goes through the ups and downs of the economic cycles, However, as is prevalent in the current economic environment, couples faced with a reduction in income or the loss in value in assets, are forced to address the cruel reality that they can no longer afford to sustain their present marital lifestyle and must cut back.

As Lieber points out, in order to survive, the couple must re-engage and readjust their “expectations about what married life is going to look like and “redefine a relationship that’s not based around the lifestyle”

2. Complacency and Lack of Involvement

Typically one spouse manages the checkbook, and manages the investments and makes all the financial decisions. When a financial crisis arises, the finger pointing and the blame game begins.

Lieber’s solution is more transparency and conversations about assets, debts and risk.

3 Parental Care Issues

The desire to take care of a parent raises a litany of ethical and /moral dilemmas. The obligation to care for a parent has to be tempered against the cost to the nuclear family.

4. College and Adult Children

College costs are exploding, stretching the finances of the families. A couple’s retirement calculations are generally based upon projections of an empty nest, a household unoccupied by children. Now, adult children, facing their own economic uncertainty want to return “home.” Parents, though well intentioned, disagree about how and when to “cut-off “their children.

5. Uncertainty

While one crisis may not destroy a marriage, doubt and fear, over time, wears down the relationship.

The suggested solution is to be diligent, to live below your means, to save and to create a large emergency fund. Long term financial planning should include college savings for your children and long-term care insurance your parents.

While leaving below one’s means may not be possible or desirable, saving for the rainy day is advised. Communication is essential. A financial crisis can put a marriage in peril, being blindsided will destroy it.

 

 

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As difficult as divorce is for the parties, it is far more traumatic for the children. When parents divorce, every aspect of the children’s life is up-ended as they watch their parents prepare to go to war against each other.

Children, who should enjoy the unconditional love and affection of both parents, may be drawn into the battle as their loyalty is tested. A showing or expression of affection for one parent could be taken as a sign of betrayal to the other. Children must stagger through an emotional minefield while their parents battle.

Although it seems like common sense, in order to minimize the children’s battle scars, parents need be mindful of the messages they are sending to the children. In particular, they need be cognizant of not only what they are saying, but how they are saying it. Of course, some subjects are just off limits.

The Texas Family Law Blog offers an instructive guide of things not to say to children and I have interposed my thoughts.

1. Do not say “Nothing is going to change.”

Be honest with you children and don’t lie. The truth is probably everything that matters to the children is going to change- the children’s relationship with each of their parents is going to be different. The family will no longer be intact and the children may even have to move and change schools. The economics of the family may change.

Perhaps offer that change offers new opportunities and that change does not have to be bad.

2. Do not talk negatively about the other parent to the children.

Though you may be tempted to vent your frustration to your children, don’t!
If your spouse is unloving, cheap or selfish, in time your kids will figure it out on their own. In the interim, the children should be directed to love and respect both parents

3. Do not blame the divorce on the children or your spouse.

Divorce is never just one person’s fault and it is certainly not the fault of the children.

4. Do not discuss the details of the case with the children.

There is no reason for the children to know the details of the divorce. Court documents should not be left on the kitchen counter for children to pick up and casually read.

5. Do not use the children to spy on your ex.

When the children come back from visiting your ex, don’t interrogate them on what the ex said about you or what they did. They children should not be your messenger or your spies.

6. Do not  argue with your ex in front of the children.

Children have two parents. They are entitled to share the love and affection of both. In the end, parents should not do anything to prevent that from happening.

 

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Not all lies are equal or bad, so says Elizabeth Bernstein in the Wall Street Journal.

No one would ever claim that lies about infidelity would be acceptable. But, as Ms. Bernstein urges, “the fibs and feints and little white lies that serve as a social salve and help a relationship run smoothly.”

Some of the acceptable reasons, to fib, she argues, include- “to avoid conflict, to gain approval, to save face or just to be kind.”

Every man learns, for instance, that the answer to the question “does this outfit make me look fat” is an emphatic “No!” Perhaps this is not a lie- maybe the rose colored glasses from which a husband views his wife takes ten pounds off her backside.

Asking do I look fat or which outfit looks better on me calls for an opinion. But, would it be acceptable to lie about a fact?

One of the major reasons for divorce is that there is a loss of trust. Where do you draw the line between little inconsequential lies and the complete betrayal of trust? If the lie is of little consequence, why even bother to lie? If the entire foundation of the marriage is based on lies, isn’t the marriage destined to self-destruct?
 

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Yesterday, the Court of Appeals, New York’s highest court took on the issue of gay marriage.  One of the issues to be decided was whether to continue to recognize same sex marriages legally performed in other jurisdictions.

As previously discussed,  New York presently  recognizes, as valid, marriages performed in Canada, Massachusetts, Vermont and the other jurisdictions that permit gay marriage.

The Court could decline to recognize foreign marriages and await legislative action on the issue. If New York does not recognize the marriage as valid, a New York same sex divorce may no longer be an option.

Given this you, any same sex couples who have valid foreign marriages and are considering divorce should consider expediting the process and seek the divorce before the Court renders its decision.

See  Nicholas Confesore's article in the New York Times for coverage of yesterday's proceedings.  
 

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The Huffington Post reported on a sad and frightening phenomenon- elderly couples forced to divorce to obtain relief from medical bills and to qualify for social security benefits.

The article details the plight of Mary McCurnin and her husband Ron Bednar. In 2003, the couple declared bankruptcy after their insurance covered only 10 percent of the treatment costs for her breast cancer and his intestinal bleeding. In 2004, McCurnin's breast cancer returned, and Bednar underwent open heart surgery.

The couple is broke and unemployed. Mary, however, was previously married. Her first husband pre-deceased her and, but for the fact that she is now married to Ron, Mary would be entitled to receive her social security survivor’s benefit from her previous marriage. The Social Security Administration told her, she cannot have the survivor benefit if she's married to someone else.

So, in order to qualify for the survivor’s benefit, she is divorcing Ron.

She could divorce him now to collect short-term benefits on her earlier husband, and then at some later point after age 60 remarry him without it affecting her widow's benefits," said Lowell Kepke, a spokesman for the San Francisco regional office of the Social Security Administration. "Congress put that in precisely to stop encouraging elderly couples from not getting married."

But the widow's benefits aren't the only reasons for the divorce. McCurnin and Bednar could see a tax advantage. A married couple filing joint tax returns can earn less before their Social Security benefits are taxed than two people filing separately.

To me, it is absurd that a committed and happily married couple must divorce for their financial survival.  As the population ages and in the absence of some type of healthcare reform, will couples be forced to divorce as a means of medical expense planning in order to protect their jointly accumulated savings? If so, the sad case of Mary McCurnin and Ron Bednar will be the tip of the iceberg.

 

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In the past, many matrimonial actions got off to a particularly acrimonious start because one spouse was fearful that the other would transfer and hide assets, cancel insurance and run up debts as soon as they received notice of the divorce. As a result, one party had to go to the expense of making a motion to obtain an injunction preventing to the other spouse from acting financially irresponsibly.

Next week, a new law is goes into effect next month which makes the motion unnecessary. The law automatically enjoins parties from transferring property, relocating children, secreting assets, canceling insurance or running up debts.

The stay will become binding upon the plaintiff when the summons is filed to commence the divorce action and will become binding on the defendant upon service of the summons.
The summons will now state that an order is in effect and that:

1) Neither part shall sell, transfer, encumber, conceal, assign, remove or in any way dispose of, without the consent of the other party in writing, or by order of the court, any property (including, but not limited to, real estate, personal property, cash accounts, stocks, mutual funds, bank accounts, cars and boats) individually or jointly held by the parties, except in the usual course of business, for customary and usual household expenses or for reasonable attorney's fees in connection with this action.

(2) Neither party shall transfer, encumber, assign, remove, withdraw or in any way dispose of any tax deferred funds, stocks or other assets held in any individual retirement accounts, 401K accounts, profit sharing plans, Keogh accounts, or any other pension or retirement account, and the parties shall further refrain from applying for or requesting the payment of retirement benefits or annuity payments of any kind, without the consent of the other party in writing, or upon further order of the court.

(3) Neither party shall incur unreasonable debts hereafter, including but not limited to further borrowing against any credit line secured by the family residence, further encumbrancing any assets, or unreasonably using credit cards or cash advances against credit cards, except in the usual course of business or for customary or usual household expenses, or for reasonable attorney's fees in connection with this action.

(4) Neither party shall cause the other party or the children of the marriage to be removed from any existing medical, hospital and dental insurance coverage, and each party shall maintain the existing medical, hospital and dental insurance coverage in full force and effect.

(5) Neither party shall change the beneficiaries of any existing life insurance policies, and each party shall maintain the existing life insurance, automobile insurance, homeowners and renters insurance policies in full force and effect.

Hopefully, this automatic stay will have the intended effect of eliminating motion practice at the time the divorce is commenced, lowering the costs of litigation, protecting the parties, while lowering level of animosity.
 

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Two years ago, Domestic Relations Law 177 was enacted, requiring parties to acknowledge their awareness that following the divorce they would no longer be eligible for medical insurance through their spouse on the basis of their marriage.

Recently, the laws governing equitable distribution were amended to require courts to consider the loss of medical insurance as a factor in awarding maintenance and distributing the marital property.

Unanticipated problems arose from the implementation of Domestic Relations Law 177 particularly because the statute mandated that all settlement or separation agreements, whenever executed,  contain specific language intended to insure that the parties were aware of the potential loss of health insurance coverage. The problem was that:

perhaps thousands of individuals who, after having lived for many years
subject to the terms of a stipulation/separation agreement relating to
their marriage, may now want a divorce. For each of these individuals,
it will be necessary that they find his or her former spouse and gain
his or her agreement to a modification of the stipulation/settlement so
that it complies with section 177 and therefore can be approved by a
judge. Quite apart from the logistical difficulties attached to this
obligation, which for spouses who have been separated for many years is
of questionable or no value, there will be additional financial consequences associated with reestablishing their attorney-client relation-
ships to re-execute stipulations or amend existing ones. Maybe more
importantly, the present statute is generating delays in the processing
of divorce actions - delays that could endanger the safety of litigants
where underlying issues of domestic discontent or violence exist.

To get around this problem, Domestic Relations Law 177 was repealed and a new law, Domestic Relations Law 255, enacted. Now, only agreements executed after October 9, 2009, must contain the statutorily mandated language.

To ensure that parties receive notice of the loss of medical benefits, the summons must not bear the notation that “once the judgment is signed, a party hereto may or may not be eligible to be covered under the other party's health insurance plan, depending on the terms of the plan.”
.
 

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With training camps open and the pre-season about to begin, the Times reports that  60 to 80% of NFL players’ marriages will end in divorce.

This statistic is really not all that surprising. Football players, at least during their playing careers, like other athletes and celebrities, enjoy a fantasy-like life of privilege and temptation.

The players, often drafted right out of college, are showered with attention, adoration, and big money contracts. They simply may not be prepared to make “life” decisions, including marriage.

New York Jet James Dearth explains:

What football players go through in their careers can affect their marriages. They endure more physical pain than most other professional athletes. They play an aggressive game with non-guaranteed contracts and have the shortest average career in sports.

He then spent four minutes listing reasons that football marriages fail: rampant infidelity, women who target athletes, trophy wives, lifestyles not conducive to marriage and players being surrounded by entourages, which can discourage intimacy.

The risks to marriage do not end with a player’s career. In fact, two years after retirement, 78 percent of N.F.L. players are bankrupt, jobless or divorced.

When athletes retire, most face an identity crisis. Many do not retire on their own terms, and once they leave the game, they also leave behind the fame and fortune, the crowds and adoration. Their wives experience a similar loss of status. The dynamic players they married can become passive and withdrawn.

The post retirement disintegration of the marriage unfortunately occurs when the player’s bank account is the fattest, but his income stalled.

It is encouraging that players have begun to form support groups, dispensing marriage advice and counseling, player to make mature life decisions. One benefit of taking a long term view of their lives is that the player may have a longer and more successful playing career.

Duncan Fletcher, the director and program manager of the Professional Athletes Transition Institute at Quinnipiac University, and Dale Jasinski, the executive director, have found that most athletes do not look beyond their playing careers, and those who do generally play more, play better and have longer careers than their teammates.

 

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In the present political climate, health care and medical insurance coverage are hot button topics. But, for those going through divorce, medical coverage has long been a fertile topic for consideration.

It was for this very reason that a law was enacted two  years ago (and discussed here)  requiring parties to a divorce to acknowledge that following the entry of divorce that they would no longer be eligible to a continuation of medical benefits derived solely by virtue of their marriage. I suppose too many people were caught off guard without medical coverage following a divorce.

Effective September 21, 2009, the loss of health insurance benefits will  be be one of the enumerated factors to be considered in determining maintenance and equitable distribution. The other factors contained in Domestic Relations Law 236 Part B include,

a) the income and property of the respective parties including marital property distributed;
b) the duration of the marriage and the age and health of both parties;
c) the present and future earning capacity of both parties;
d) the ability of the party seeking maintenance to become self supporting and, if applicable, the period of time and training necessary therefor;
e) reduced or lost lifetime earning capacity of the party seeking maintenance as a result of having foregone or delayed education, training, employment, or career opportunities during the marriage;
f) the presence of children of the marriage in the respective homes of the parties;
g) the tax consequences to each party;
h) contributions and services of the party seeking maintenance as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party;
i) the wasteful dissipation of marital property by either spouse;
j) any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration; and
k) any other factor which the Court shall expressly find to be just and proper.

While the consideration of the loss of insurance benefits is the first amendment to the equitable distribution law since it was enacted almost thirty years ago, I am not certain that this is a significant development.

From my experience, most attorneys have long recognized that the cost of medical coverage must be considered in settlement negotiations. No responsible adult can afford to be without health coverage and the insurance premiums can be potentially prohibitive.

In fact, the continuation of medical coverage under a “family plan” is a prime reason why many couples agree to a legal separation even after they sign a settlement agreement.

Even though the consideration of the cost or loss of medical insurance was not expressly provided for in the Domestic Relations Law, courts were always empowered to consider it under the catch-all "any other factor . . .  the Court found to be proper"  contained DRL 236.   The new law  makes consideration of the cost of health insurance mandatory.

 

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Not surprisingly, marriage been shown to have positive health benefits, while a divorce or the death of a spouse has a negative impact on health.

A recent study has shown that:

Middle-aged and older Americans who were currently married tended to give higher ratings to their health than their never-married counterparts. They also reported fewer depression symptoms and limits on their mobility.

On the other hand, divorced or widowed adults fared worse than the never married on certain health measures -- including the number of chronic health conditions reported. "Previously married people experience, on average, 20 percent more conditions and 23 percent more limitations," the researchers write in the Journal of Health and Social Behavior.”

The results of this study seem somewhat obvious - divorce increases stress and the negative effects of stress on the body are well documented.

On the other hand, the study failed to measure the health effects of couples in less than blissful marriages. Past studies have found that people who remain in an unhappy marriage may have increased risks of health problems like high blood pressure, depression and heart disease.

 

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In the middle of preparing for a complicated custody trial, I was contacted by Smart Money to discuss the divorce considerations of Jon and Kate. (I may have been the only person in America not to know who they are – fortunately, my wife filled me in.)

The article, in which I am extensively quoted, addresses many of the issues to be considered when contemplating divorce. The complexity of the issues is compounded exponentially because of the sheer size of Jon and Kate’s family.

Indeed, the child support calculation is simply “off the charts” as the child support guidelines do not even contemplate families of this size. Moreover, the overnight “celebrity” may skew the child support calculation which will be based on the couple’s reality television income, which I am sure, is substantially higher than their pre-television earnings.
 

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Remember the YouTube spectacle of Tricia Walsh Smith who publicly humiliated her husband and, ultimately, herself.

In the age of social networking, new rules of apply to couples going through divorce.
The rules, as compiled by Time, can succinctly be boiled to one- “Discretion is the better of valor.”

1. Don’t brag.

Your claims of poverty will ring hollow if you brag on Facebook about your purchases of expensive items or post photographs of lavish vacations.

2. Keep the party off-line

Sure you may want to let off some steam, but if you are engaged in a custody fight, the pictures of you holding a bong in one hand and a half empty bottle of “Jack” in the other are not going to win you points with the judge. They probably are not going to be too helpful when lecturing your kids about sobriety or on your next job interview.

3. Guilt by association.

You are who you hang out with. See Rule No 2.

4. Keep the details of the divorce private.

Don’t fuel the fire with comments and criticisms on the internet. No one likes their spouse’s divorce attorney or the judge after an unfavorable ruling. But remember, the judge is going to make many rulings in the course of a case- some you will win, others you will lose. Do you really want the judge to rule on your case after you publicly criticized him or her?

5. Don’t Defriend.

As Time points out, unless it is high conflict, “Don't "defriend" in-laws or your ex's friends right away. People need time to adjust.”
 

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There are few certainties in life. However, one of life’s certainties is that all marriages will end, whether by death or divorce.

At the end of marriage, whether by divorce or death, disputes over money and the disposition of marital assets may be inevitable. However, a pre-nuptial agreement can help lessen the potential for conflict by clearing identifying the parties separate property and defining the parties’ rights to the marital property.

A recent article illustrated why a Pre-Nup may be a smart money move. 

1. Why are pre-nuptial agreements beneficial?

"One of the common reasons to get a pre-nup is to protect the interests of children from a prior marriage. A sizable portion of assets (called the elective share) may automatically go to a spouse upon death in most states, but this can be avoided by using a pre-nup."

This elective share can be waived in a pre-nup. This is an important consideration, particularly where there are children from a prior marriage.

"Another scenario when a pre-nup makes sense is when there's a significant disparity in wealth. It's also worth considering if you or your spouse-to-be owns a small business or a stake in a family business; a pre-nup can ensure ownership isn't contested in a divorce."

2. Cost

While a pre-nup may be expensive to draw up, the cost of litigating a contested divorce is even greater.

3. What should a pre-nuptial agreement include?

The main purpose of a premarital agreement is sort out who owns what in the event of a divorce.
The agreement may not only define what is a person’s separate property, but it will also specify what assets or debts will be joint or marital and direct how they will be split in the event of divorce.

The agreement can also direct if, and how, alimony or spousal maintenance will be paid.
 

Some agreements even go as far as to provide how household expenses will be paid during the marriage.

It is important to note that the agreement cannot be procured by fraud, coercion or duress and the terms of the agreement cannot be unconscionable.  Crying to the court that “I only signed the agreement because he would not marry me otherwise” is not duress.
 

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Much has ado has been made of the pilots being sued by Continental Airlines because they divorced in order to get partial distributions of their pensions. As reported in Freakonomics:

Continental Airlines is suing nine of its pilots, reports ABC News, claiming they faked divorces in order to draw down their pension funds before retirement. The airline became suspicious when some of the couples continued living together and all nine couples eventually reunited. Continental believes the pilots became worried about the safety of their pension funds, especially after seeing what’s happening at other airlines.

The airline claims that the divorces were shams. The couples all continued to live together and most did not even tell their friends and family about the divorces.

On the other hand, the parties were legally divorced. By getting divorced, even temporarily, they lost the rights afforded married couples, like for instance, the right to continued health coverage. If their tax year ended while they were divorced, the parties could not file joint tax returns.

In fact, the Continental Airline employees gambled that after making generous settlements, their spouses would re-marry them. Indeed, the parties would be hard-pressed to complain that the divorce settlement should be set aside because it was procured by their joint “fraud.”

Many marriage and divorce decisions are economically motivated. Some couples wed to obtain healthcare coverage. Others refrain from marriage to protect their social security status. Still others divorce as part of an elder care plan.

What these Continental employees did was lawful; the employer should not have the right to question the legitimacy of the employees’ marriage or divorce.
 

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In case that seems to be splitting hairs, a judge ruled that emails culled by a wife from her husband’s on-line account did not constitute eavesdropping and were, therefore, admissible at trial.

Had the emails been intercepted while “in transit” to the husband, the wife would have guilty of eavesdropping under Penal Law Sec. 250.00. The law prevents individuals from intercepting a communication, like an email, going from one person to another.

In the case, Gurevich v. Gurveich, (subscription required) the wife had her husband’s email account passwords, and accessed his account. By doing so she was able to obtain emails evidencing a scheme to hide his income. Justice Sunshine ruled that the emails were admissible because the emails were not “in transit” when they were read by the wife-they were already in the husband’s account.

The moral of the story, if you do not want your email communication to be used against you in a divorce, don’t give your spouse your passwords or access to your account. As part of your divorce preparation, change your passwords.
 

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The Court of Appeals, New York’s highest court announced in a pair of cases that marital funds which were used to pay the separate obligations of one of the parties during the marriage could not be recouped in the divorce. This is a far reaching decision because, for instance, a second wife cannot now recover from her husband marital funds used to pay his first wife spousal maintenance or child support.

In short, the divorce court should only consider the assets and liabilities existing at the time of the divorce.

The Court in Mahoney-Buntzman v. Buntzman declared that:

Courts should not second-guess the economic decisions made during the course of a marriage, but rather should equitably distribute the assets and obligations remaining once the relationship is at an end.

The Court recognized that if a trial court were to scrutinize every transaction during the marriage, the result would be a cumbersome review by a court, forced to review the reasonableness of every expenditure, measuring the benefit to each of the parties. Instead, the Court declared that “The parties’ choice of how to spend funds during the course of the marriage should ordinarily be respected.”

This same conclusion was reached in Johnson v. Chapin, decided the same day.

In reaching this conclusion, the Court noted that:

There may be circumstances where equity requires a credit to one spouse for marital property used to pay off the separate debt of one spouse or add to the value of one spouse's separate property . . .Further, to the extent that expenditures are truly excessive, the ability of one party to claim that the other has accomplished a "wasteful dissipation of assets" (DRL 236 [B][5][d][11]) by his or her expenditures provides protection.

In other words, questionable or wasteful expenditures may be examined, child support and maintenance payments may not.

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I was asked the following question on the Law Guru website

My wife and I are having problems. We are proposing a temp. separation. Things are getting heated, with demands and threats... ''If I don't do as she wishes or says'' she will call 911. I avoid her as much as possible, most of the threats are over the phone. We also have a 5yo child. I don't know what to do. Do I move out per her demands and face abandonment, do I call 911 first??

 If your spouse commits or even threatens to commit an act of violence the police should be immediately summoned. When there has been an act of domestic violence and the police forced to respond, they have no discretion and will make an arrest. 

In cases where each of the parties accuses the other of domestic violence, both parties could find themselves under arrest. The police will arrest both parties and let the court sort out the facts and determine who is the violent offender. When there is an arrest, an order of protection is issued.

In cases where there has been no actual violence, but your spouse still threatens to call 911, it is best to simply leave the home. It is simply too dangerous to remain under the same roof with someone willing to make false accusations of domestic violence. From my professional experience, these threats are carried out. Fights are provoked and the police are called. 

If you are arrested an order of protection will be issued and you will be expelled from the marital home.  As a result, you may have limited access to you children and you unable to retrieve your clothing and other personal property unless escorted by a police officer. 

Given that your personal liberty is a stake, there is no downside to leaving the marital home given the threats.

 

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As I predicted in this blog, same sex divorce has come to New York. A Supreme Court judge in Broome County has granted a same-sex Binghamton couple a divorce.

As pointed out at Pressconnect.com, this divorce is a bit ironic.

New York doesn't allow same-sex marriages, but state Justice Molly R. Fitzgerald allowed Lauren Wells-Weiss to divorce her partner, Shari Weiss. The two married Aug. 13, 2004, in Toronto, after a private religious ceremony before family and friends in Ithaca in 2001.

The case is paradoxical, said both women's attorneys, because in their opinion the judge recognized the lesbian couple was married, although New York state law doesn't allow same-sex marriages.

New York will recognize as valid, marriages which were legal where they were solemnized, even if they would not valid if the marriage took place in New York.

Although New York will not allow same sex couples to wed, in the past year, there has been a line of cases which have recognized, as valid, same sex marriages lawfully performed in Canada and Massachusetts. In these cases, courts have extended to same sex couples legal rights previously only available to lawfully wed couples.

My only disappointment is that I had hoped that one of the same sex divorce cases I am presently working on would be New York’s first. Perhaps I will have to take consolation in representing litigants in the first New York City same-sex divorce.

 

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There has been much ado about the effects of the economy on divorce.

Those who need to sell the marital home to fund their fresh start may now feel imprisoned in their marriage. With greater frequency, those unable to sell their home are forced to continue to cohabit with their spouse.

The Daily News featured a story about when a couple cannot afford to separate for which I was interviewed. Follow the link to read the article.
 

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After the bitter fight to acquire valuable assets in your divorce, you may not want to face your own mortality, but should you die and your ex is still designated as the beneficiary of your life insurance or will, all the litigating and negotiating will have been in vain.

Alan Nye in the Maine Divorce Blog offers some sage advice on post divorce estate planning:

1.  Change all the beneficiary designations on your life insurance policies, 401(k) plans, IRAs, and any other accounts that may have had your former spouse designated as a beneficiary.
2.  Revise your will. Make sure that your children, other family members, not your ex, take under your will.
3.  Close any joint bank accounts and credit cards. Make sure that your ex does not have access to credit lines that you will be liable to pay.
4.  Revise your living will and revoke any powers of attorney that you gave to your ex.

Obviously, you should consult with your attorney, tax adviser and financial planner to ensure that your plans are made in an efficient manner.
 

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Human organs are not assets to be distributed in a divorce. Thus is the ruling in  Batista v. Batista, the case in which a Long Island doctor sought compensation for donating a kidney to his wife,

The National Law Journal reports that:

At its core, the defendant's claim inappropriately equates human organs with commodities," Referee A. Jeffrey Grob wrote in Batista v. Batista, Jr., 201931/05. Grob noted that while the term "marital property" is "elastic and expansive ... its reach, in this Court's view, does not stretch into the ether and embrace, in contravention of this State's public policy, human tissues or organs.

Public Health Law §4307 makes it a felony for "any person to knowingly acquire ... for valuable consideration any human organ for use in human transplantation.”

While morally repugnant and questionably legal, the doctor’s claim for compensation for “sacrificing” his kidney is creative. Even the court noted that while it will not directly compensate the husband for his kidney, his “altruism” may be considered in distributing other marital assets.

While the court order provides that  Dr. Batista may not offer economic proof of the value of his organ donation, the Court did  "not suggest that the sacrifices, magnanimity and devotion, which arguably and logically attend [to the organ donation], are beyond the pale or lack relevancy."
 

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Despite overwhelming support to adopt a no-fault or irreconcilable grounds for divorce, New York remains the only state in which a party must allege and prove marital fault in order to obtain a divorce.

By far, the most common fault based ground for divorce in New York is constructive abandonment. In the recent case of Mehl v. Mehl, the Appellate Division defined the elements of this ground for divorce.

It is well settled that to establish a cause of action for a divorce on the ground of constructive abandonment, the spouse who claims to have been constructively abandoned must prove that the abandoning spouse unjustifiably refused to fulfill the basic obligations arising from the marriage contract and that the abandonment continued for at least one year.

“Basic obligations arising from the marriage” is legalese for sexual relations.

In order to rise to the level of constructive abandonment, the refusal to engage in intercourse must be "unjustified, willful, and continued, despite repeated requests from the other spouse for resumption of cohabitation'"

Further, as the Mehl case illustrates, the person seeking the divorce cannot be the party who refused to have sex.
 

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To the list of things Bernard L. Madoff has been blamed for ruining — retirements, lives, reputations — add another: a clean breakup.”

The New York Times is reporting that a husband (a lawyer), who, entered into a settlement agreement distributing marital assets, which included an investment in Madoff’s hedge fund, is seeking contribution from his ex wife for the post-divorce losses sustained in the Ponzi scheme.

Rather than splitting an investment in the Madoff hedge fund, the husband gave the wife $2.7 million in cash and held onto the account. Of course, the account is now worthless. The husband wants his ex wife to share in his loss.

Good luck!

Had the wife participated with Madoff in the fraud or had knowledge of the wrong-doing, the husband might have a case. But, the husband simply made an unfortunate choice and, through no fault of the wife, lost his investment.

Had the account value gone up, it is doubtful that husband would have shared the profits with his ex-wife. Alternatively, had the wife poorly invested the cash she received from the husband, she would have no claim against the ex-husband for her loss. And what about all the people who bargained for the marital home, which is now worth substantially less than it was one year ago-should they look to have their former spouses share in the loss?

There is a practical reason why the husband cannot win this case-if the mere fact that some former marital asset lost value could subject a settlement agreement to attack, there would be no finality to divorce. Every agreement would be at risk for a post divorce attack. In order for there to be finality, in absence of fraud, duress or coercion etc, agreements must be enforced, without the benefit of hindsight
 

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Last week’s article in the NY Times about how difficult divorce has become as a result of the housing crisis has stirred up quite a bit of debate.

The Times notes that:

In a normal economy, couples typically build equity in their homes, then divide that equity in a divorce, either after selling the house or with one partner buying out the other’s share. But after the recent boom-and-bust cycle, more couples own houses that neither spouse can afford to maintain, and that they cannot sell for what they owe. For couples already under stress, the family home has become a toxic asset.

In LadyBlog Theodora Blanchfield opines that the difficulty in liquidating the marital home is a good thing. She writes:

. . . I think any other obstacle to divorce is actually a good thing. Combine that with the housing crisis, and you might actually have people thinking twice about buying a home they can’t afford or marrying someone they’re not in love with. For being a single girl living in New York City, it might be a little Pollyanna-ish for me to say this, but when I marry, it’s going to be forever, and when I buy a house it’s going to be something I can pay off before I die.

This is a wonderfully optimistic view when entering into a marriage or even when purchasing a home. However, when marital difficulties arise or when one spouse unilaterally decides that he/she no longer wants to be married, any barrier to divorce has the effect of imprisoning the parties.

One of the commentators to Ms. Blanchfield's post best sums up the short-sightedness of her reasoning that the present economic conditions are somehow good for marriage.

When my wife decided a year ago that, after almost six fantastic years, she’d rather not be married anymore, we decided to try and fix things. It  didn't work, and the housing crisis hit. Now, although we have no difficulty paying our mortgage, neither of us can afford to move out.

I thought I was marrying for forever too, and three years ago our house looked like a pretty good investment. We got a fixed rate so we were never at any risk of foreclosure. Now I am stuck living in a house with a woman who no longer loves me.

Ms. Blanchfield ignores the simple fact that barriers to divorce do not compel a couple to resume any part of the martial relationship. The obstacles merely lock the parties in a dead relationship and prevent them from moving on with their lives. The inability to sell the marital home or to untangle their finances imprisons an estranged couple under the same roof. How is this a good thing?
 

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Last week’s article in the NY Times about how difficult divorce has become as a result of the housing crisis has stirred up quite a bit of debate.

The Times notes that:

In a normal economy, couples typically build equity in their homes, then divide that equity in a divorce, either after selling the house or with one partner buying out the other’s share. But after the recent boom-and-bust cycle, more couples own houses that neither spouse can afford to maintain, and that they cannot sell for what they owe. For couples already under stress, the family home has become a toxic asset.

In LadyBlog, Theodora Blanchfield opines that the difficulty in liquidating the marital home is a good thing. She writes:

. . . I think any other obstacle to divorce is actually a good thing. Combine that with the housing crisis, and you might actually have people thinking twice about buying a home they can’t afford or marrying someone they’re not in love with. For being a single girl living in New York City, it might be a little Pollyanna-ish for me to say this, but when I marry, it’s going to be forever, and when I buy a house it’s going to be something I can pay off before I die.

This is a wonderfully optimistic view when entering into a marriage or even when purchasing a home. However, when marital difficulties arise or when one spouse unilaterally decides that he/she no longer wants to be married, any barrier to divorce has the effect of imprisoning the parties.

One of the commentators to Mr. Blanchfield’s post best sums up the short-sightedness of her reasoning that the present economic conditions are somehow good for marriage.

When my wife decided a year ago that, after almost six fantastic years, she’d rather not be married anymore, we decided to try and fix things. It didn’t work, and the housing crisis hit. Now, although we have no difficulty paying our mortgage, neither of us can afford to move out.

I thought I was marrying for forever too, and three years ago our house looked like a pretty good investment. We got a fixed rate so we were never at any risk of foreclosure. Now I am stuck living in a house with a woman who no longer loves me.

Mr. Blanchfield ignores the simple fact that barriers to divorce do not compel a couple to resume any part of the martial relationship. The obstacles merely lock the parties in a dead relationship and prevent them from moving on with their lives. The inability to sell the marital home or to untangle their finances imprisons an estranged couple under the same roof. How is this a good thing?
 

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This is a great time of the year to take stock of all that we have to be grateful for. Even readers of this blog, who are, presumably, engaged in some type of matrimonial action, whether it be a divorce or a child custody case should be able to find something to be thankful for, i.e., their health or simply the love and support of their extended family and friends. Embrace that good feeling and pay it forward.

Season’s greetings to all. Have a Happy Hanukah and Kwanza, Merry Christmas. I wish you a very Happy, Healthy, Peaceful and Prosperous New Year.

                             Dan Clement
 

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In the spirit of the upcoming holidays, Newsweek offers guidance to divorced parents on how to make the holidays better for their children.

Admittedly, the holidays are the most difficult and painful times for families broken apart by divorce. Both parents want to maximize their time with their children. Even the best intentioned parent may be tempted to play the game of one-upmanship by giving bigger and more expensive gifts to the children in an attempt to buy their love. All of this leads to increased stress and conflict at a time that should be joyous.

But, there are things that you can do to make the holidays easier for the children. According to Robert E. Emery, professor of psychology and director of the Center for Children, Families and the Law, the challenge is to view and conduct your behavior from the children’s perspective.

Professor Emery offers these tips, with my comments included, to make the holidays more bearable:

1. Remember that the holidays are not all about you.

”Encourage the children to have a blast with their other parent, even if you can't stand the prospect of being alone.”

2. Get into the spirit of the season.

”This is a time of giving, forgiving and fresh starts. Turn Scrooge's emotional lessons about holidays past, present and yet to come into New Year's resolutions about letting go of anger and treasuring all you have—despite all you have lost.”

3. Love means far more than money.
 

Your time, love attention and emotional presence are the best gifts you can give your children. You do not have to be physically present to “be there” for your children. .
 

4. The holidays are not a competition with your ex, or for your children.

5. Communicate and coordinate with your children's other parent.

Communication and planning will ease transitions and reduce conflict and redundancy.
 

6. Celebrate with your children's other parent.

Children may feel guilt abandoning one parent during the holidays. Do a good deed – for the sake of the children – and include the other parent; maybe next year the favor will be returned.
 

7. Set up a plan for next year now.
To avoid last minute disappointment or negotiations, plan for the holidays in advance; if there is a holiday schedule try to stick to it, but be willing to amend it as needed.

8. Establish traditions with your children.
Establish new traditions with your children. After all, it is the rituals and traditions, passed on from generation to generation that make holidays special.

I wish you all a healthy, festive, joyous, peaceful, stress-free and prosperous holiday season.
 

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I recently came across pretty naive article in which Ashia Sims, a relationship examiner, opined that marriage should be forever and divorce should not be an option. While the idea that that marriage is forever is highly appealing and very romantic, it is premised on an overly simplistic or idealized view that two people are destined to be together, forever.

In her article, Ms. Sims wrote:

In my mind, once I’m married it’s FOR LIFE. There is no breaking up or getting a divorce. We are going to make it work and grow old together. Period. I do agree that if you make divorce an option, even if only in the back of your mind, you give yourself permission to not work as hard as possible to make the relationship work.

I am not so cynical to believe that most people enter marriage viewing it as temporary condition. Most of my clients entered into their marriages in the good faith belief that they would spend the remainder of their lives with their spouses. But, life is not linear or always go as planned. Relationships evolve. People change. Two people, just because they are wed, do not necessarily grow at the same rate or in the same direction. When a couple no longer shares the same goals, visions or values and their differences can no longer be reconciled, even after counseling, should they be compelled to remain together? For what purpose?

Then, there are the issues of infidelity, domestic violence and substance abuse. Trust and respect are the cornerstones of a healthy relationship. If one of the spouses has been badly betrayed and the marital relationship has irretrievably broken down, why should these people stay together?

When dating, few people acknowledge that they are abusers. Should a battered spouse be compelled to remain in a marriage because of the simplistic view that marriage is forever?

While some people may prematurely end their marriages, most do not. The vast majority of divorcing couples elect to end their marriage as a gut wrenching last resort choice. Divorce only becomes an option after their attempts to salvage the marital relationship fail. No one should be forever imprisoned in a bad marriage because of the child-like belief that marriage has to be forever.

When Ms. Sims finally weds, I hope her relationship will be a healthy and nurturing long-lasting one. But, if life does not go as planned, it is good to know that are options.
 

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As the economy continues to falter, there are reports of a couple of distinct trends in family law cases: many couples are putting off their divorces and, if the couples are going forward with their divorces, they doing so without legal representation.

NBC News is reporting that “more distressed couples are putting off divorce because the cost of splitting up is prohibitive in a time of stagnant salaries, plummeting home values and rising unemployment.”

In more prosperous times, the marital home was the largest asset to be distributed. When it was sold, the proceeds used to be enough to allow both parties to have adequate funds to finance their fresh start. “But the disastrous real-estate market is leaving many homeowners owing more on their mortgages than their properties are worth — turning what would normally be their biggest marital asset into a liability.”

Today, with housing prices so low, it’s again cheaper for couples to “work out your differences now,” said Clinton J. David, a lawyer specializing in complex business transactions in Dallas.

Instead of you and your soon-to-be ex-spouse fighting over how to divide up the profits from the sale (of a home), you could actually, unfortunately, end up fighting over who’s going to pay off the lender because the loan on the home is actually more than the value.

For those people who do want to divorce, more people are representing themselves in court, according to the Associated Press. Many pro se litigants represent themselves in court so as to avoid the cost of attorneys.

But, there are inherent risks in representing yourself in court.  Pro se litigants are unfamiliar with rules of procedure, the rules of evidence, and standards like the burden of proof.  As a result, cases may not be properly presented in court, with devastating consequences, like the loss of custody of children.

I am awaiting reports of a third trend – reports of increased filings for modifications of existing child support and maintenance awards. It will be interesting to see how the courts will handle request to reduce  support orders in view of the systemic meltdown of the economy, the loss of employment and the decline is stock portfolios and real estate values.
 

 

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Time Magazine questions, Will the Economy Kill Your Marriage?

A couple of weeks ago, I noted that as the economy worsened, my practice became busier. Time seems to confirm my observations and even offers some possible explanations for this phenomenon:

There's the lawyer theory, that money provides the soft fatty tissue that insulates the marital skeleton; once it's cut back and people get a good look at the guts of their relationship, they want out. And there's the marriage-counselor theory, that couples who were never quite on the same page in the checkbook finally get pushed off the ledger by endless bickering over their dwindling resources. And the therapist theory, that financial worries cause stress, stress can cause depression, and depression is a total connubial buzz kill.

The article notes that the recession affects the upper and middle classes differently. For the wealthy, the recession offers an opportunity to end the marriage at bargain basement prices as property will be distributed at lower valuations. The article points to the case of Summer Redstone to illustrate this point:

Sumner Redstone filed for divorce on Oct. 17, when his more than 16 million Viacom shares were at $18.85, down from $39.40 six months ago; his CBS shares had dropped about $288 million in value in the same period. . . Mrs. Redstone divorces a poorer man than she would have six weeks ago.

For the majority of the population, the principal marital assets, the 401(k) and the marital home have lost much of their value. Without equity in the marital home and encumbered by substantial credit card debt, the parties are oft left to fight about who gets stuck paying the bills. In some cases, unable to distribute the debt or sell the marital home, the estranged spouses are forced to become unwilling room-mates.

To put the recession and divorce in perspective, I am reminded of the punch-line of a bad joke –where “Pat” complains that the recession is worse than divorce. Pat, continues, “I lost half my assets but I still have my spouse.”
 

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The Divorce Blog has reported that a same-sex couple, wed in Massachusetts, can divorce in New York.

This is consistent with New York’s evolving policy of recognizing same sex marriages entered into outside of the State of New York. I have written about New York's recognition of same sex marriage here.

While New York will recognize a same sex marriage lawfully performed in a jurisdiction other than New York, same sex couples cannot wed in New York.

I am a bit shocked that it that following the decisions in Martinez v. County of Monroe, and Beth R. v. Donna M., that it took so long for someone to bring a same sex divorce case. The only question is now that the same sex divorce cases began, when will the floodgates open
 

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Litigants going through divorce become all consumed by it. They eat, sleep and live divorce. They complain about their soon to be ex to their friends, family, their neighbors, their hair dresser, their mailman, and anyone or everyone they speak to. (If they are to be believed, it really makes you wonder how they could have been married to such a flawed person).

While it is necessary to open up and express feelings of anger, grief, betrayal and jealously, it may be unhealthy to constantly obsess about the divorce so that it becomes the sole reason for being..

The Modern Women’s Divorce Guide offers six practical ideas to prevent divorce from all consuming:

1. Establish a daily schedule that allows you to spend approximately one hour per day discussing or dealing with your divorce, except, of course, when more time is absolutely necessary (i.e. attending a court hearing). Stick to your schedule.
2. Stop texting, emailing, messaging and writing about your divorce to anyone, especially your EX! (Notes to lawyers as requested are permitted, within reason.)
3. Limit your divorce communications to one hour per day (see above) and only share your thoughts with a select group of people. (This will prevent your divorce from seeping into and filling up every corner of your life.)
4. Exercise daily, limit your alcohol intake and get as much rest as possible.
5. Distract yourself with positive people and activities. Find a new hobby, go out with friends, watch upbeat movies or do anything else you love.
6. Take up meditation or yoga to free your mind, body and spirit..

 

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The Divorce Blog highlights the raging debate over “No-Fault” divorce; is no-fault divorce good or bad idea?   As I discussed before, New York is the only state without a no-fault grounds for divorce and proposals for it  are again before the state legislature.

Quoting a Newsday feature, the article voices the concern that no fault divorce is somehow “dangerous to women and children.”

No-fault divorce allows couples to end a marriage without assessing blame.   Neither spouse has to prove or accuse the other of marital fault.   Likewise, no-fault divorce prevents one spouse from seeking to take advantage of the other in cases where neither party has a cognizable grounds for divorce.

In the end, divorces become less acrimonious and less expensive as marital fault need not be considered.

The criticism of no fault divorce is that it would, somehow, put victims of domestic violence at a disadvantage. However, the criticism misses the point. The abused victim would no longer have to prove (at a needless and costly trial) that they are vcitims of  "cruel and inhuman treatment” in order to terminate the marriage. Iff, after trial, marital fault has not been established, the abusive relationship is not terminated. Doesn’t this put the abused spouse at far greater risk?

The other concern, that the moneyed spouse could seek a no fault divorce, leaving the dependent spouse to fend for his or herself, is also unfounded. The current proposals for no fault divorce require all issues (i.e., grounds, equitable distribution, and child support) to be resolved prior to the entry of a judgment of divorce. If a trial is necessary, the parties could focus all of their resources on issues other than fault.

 

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Shannon Cavers in The Houston Texas Divorce and Family Law Blog details her observations of a litigant who retained one of the so-called “do-it yourself” divorce services to secure a divorce and then encountered problems.

These services routinely advertise over the internet about how they are the supposed low cost alternatives to a divorce lawyer. Typically, these services prepare the divorce papers so the litigant can appear “pro se” (without legal representation) and file the papers in court as an accommodation.

I have long wondered why these services are not prosecuted for the unauthorized practice of law. Although these services claim to be nothing more than “form preparers,” in reality, they do all of the legal and clerical work in connection with the divorce. In every sense, they function as divorce law firms, though there may be no lawyer on staff. I even wonder if the operators have paralegal training.

My concern is that “clients” or customers of these firms are at risk. Unlike lawyers, who are trained in the law and who’s legal and ethical conduct is regulated by the courts, these services operate without standards or oversight. My guess is that they do not even have liability coverage for when they make mistakes.

There is no substitute for competent legal representation, who is retained to protect your rights and interests. A skilled matrimonial lawyer knows not only the black letter of the law, but its nuances as well.

If you opt do-it-yourself, but require help, the courts have “pro se” offices to assist unrepresented litigants, the divorce forms and instructions are online and many of the local Bar Associations offer clinics. Avail yourself of this help.
 

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The New York Times ran a front page story detailing how the availability of medical insurance has become a major consideration in the decision to divorce or to wed.

In a poll conducted this spring by the Kaiser Family Foundation, a health policy research group, 7 percent of adults said someone in their household had married in the past year to gain access to insurance. The foundation cautions that the number should not be taken literally, but rather as an intriguing indicator that some Americans “are making major life decisions on the basis of health care concerns.”

The issue of medical coverage has long been a consideration in divorce. In fact, many couples, after negotiating their settlement agreements, delay seeking an immediate divorce and, instead, opt to divorce on the basis of their living separate and apart for a year pursuant to a written separation agreement. The one year separation allows a party who would otherwise be without access to medical insurance to remain eligible for medical coverage on the basis of the marriage. Some couples put off the divorce for even more than a year for this very reason.

Amplifying this consideration, New York requires parties to acknowledge that they are aware that they will no longer be allowed to receive health coverage under their former spouse's health insurance plan once the divorce is granted.

Following the divorce the parties may be eligible to continue medical coverage under COBRA (which can be prohibitively expensive) or purchase insurance on their own
 

 

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A preliminary conference will be, for most, the first, if not the only court appearance in a contested divorce in New York.

I like to think of the preliminary conference as the first opportunity to formally eliminate and identify issues in the case. Once the issues in dispute are identified, the timeline is set for their final resolution at trial.

Like all court appearances in a matrimonial action, the parties and their attorneys must appear in court.  At the conference, the parties sign a binding agreement (a " Preliminary Conference Order") detailing  what issues (marital fault [grounds], equitable distribution, maintenance, child custody, support and visitation)are in dispute.   If, for instance, the grounds for divorce are unresolved, the court will immediately schedule a grounds trial.

If grounds are not in dispute (both parties agree that there will be a divorce upon some ground), the preliminary conference order will address discovery for those issue which are unresolved. For example, the order will provide for the exchange of financial documents and may address the appointment of necessary experts to value property, businesses, professional licenses, degrees and pensions, etc. The order may also address how the experts will be paid.

If there are issues involving children, the court may appoint a law guardian for the children and may also order a forensic examination.

This conference gives judge his first taste of the case. At the conference, the judge will be able to meet and assess the parties and informally judge the merits of the case. The Court will also be able to address any immediate issues like temporary maintenance, child support or anything else that may require the judicial resolution.

As I said at the outset, for many, the preliminary conference will be their only court appearance in the divorce. Many cases are resolved at the preliminary conference. Most contested divorces settle some time after the preliminary conference during the discovery phase of the divorce.

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The verdict is in - it is no shock that the Youtube videos of Tricia Walsh-Smith back fired.

I previously wrote about how Mrs. Walsh-Smith lashed out against her husband Philip J. Smith in the her now famous YouTube video.   In the video, Ms. Walsh-Smith discusses, her marriage, the unfairness of her pre-nup, her marital sex life and more.   At one point in the video, she even  called her husband’s office and spoke to his assistant about his stash of Viagra and porn.

In my post, I predicted that this attempt to humiliate her husband would not be helpful to her case.

I hate to say I told you so, but my pointed criticism of Ms. Walsh-Smith was predictive of the court’s decision.

In granting a divorce to her husband Philip J. Smith on the grounds of cruel and inhuman treatment, Justice Harold B. Beeler found that Tricia Walsh-Smith's "exposure" of his private life caused him "enormous mental distress.”

As the New York Post put it:

Beeler blasted Walsh-Smith for her video stunt, which he called "a calculated and callous campaign to embarrass and humiliate her husband" and to pressure him into settling the case on more favorable terms than were stated in their prenuptial agreement.

The New York Law Journal quoted the decision:

 Given Ms. Walsh-Smith's YouTube postings and "her exploitation thereof in the media circus" that ensued, "there is no doubt that her conduct, taken in its totality, has now so endangered the plaintiff's physical or mental well-being as to render it unsafe or improper for him to cohabit with the defendant

The Judge found that the prenuptial agreement, signed three weeks before the couple's 1999 wedding, was valid. Walsh-Smith must now leave their Park Avenue apartment within 30 days. 

Now, the only question is will Walsh-Smith make a follow-up video about how the judge or her attorney wronged her.   

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It is always a good idea after a divorce to update your will or to change the beneficiary designations on your insurance policies and investment accounts. Prior to the divorce it was likely that your wife was your heir or beneficiary. After your divorce, you may not want your ex to benefit from your death.

Problems arise when someone dies and their pre-divorce will or beneficiary designation has not been changed and their spouse is the beneficiary. .


While a disposition in a will to a former spouse would be  revoked by a divorce or an annulment, until recently a divorce did not revoke many other revocable dispositions which are essentially like wills (so-called "testamentary substitutes"), such as lifetime revocable trusts (including Totem Trusts), life insurance policies, or joint tenancies (including joint bank accounts). 

A new law was enacted to end this inconsistency. Now, according to the law’s legislative memorandum:

.  .  .  a divorce or annulment would revoke any revocable disposition or appointment of property to a former Spouse, including a disposition or appointment by will, by beneficiary designation, or by revocable trust (including a bank account in trust form). It also would revoke any revocable provision conferring a power of appointment on the former spouse and any revocable nomination of the former Spouse to serve in a fiduciary or representative capacity, such as nomination of the former Spouse as a personal representative, executor, trustee, guardian, agent, or attorney-in-fact. Finally, a divorce would sever joint tenancies between former Spouses (including joint bank accounts) and transform them into tenancies in common.

The law is applied so as to treat the surviving former spouse as if she/she predeceased the decedent.

So, how to avoid the application of this law? It is simple. Update your will and beneficiary designations after the divorce is granted. Get your ex-spouse out of your will.  If you really want to benefit your former spouse, spell out your desire in your updated will.

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I was featured in an article on Forbes.com about divorce during the recession.

Quoting Billy Joel’s lyric, “They started to fight when the money got tight. . .”
I have definitely noticed an increase in work, telephone inquiries about divorce and even traffic to this blog as the economy soured.

My experience, according to the article quite explainable . “Recession has always been a factor raising divorce rates," explains University of Chicago Business School economist Gary Becker."

.

 

 

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A-Rod, Christie Brinkley, Madonna. There is no escaping it. Divorce is all over the news. The tabloids (and their readers) are eating it up.

The issues in these celebrity divorces are, in large measure, the same as those of everyone else. Granted - few of my cases involve the wealth of someone like A-Rod.

These cases seem to all have the recurrent theme of adultery, infidelity and loss of trust. As a result of the betrayal, marital assets will have to be divided.

The very public Christie Brinkley trial is particularly compelling. It is providing a primer on how a child custody trial works. In a child custody case the inquiry is what are the best interests of the children. In the Brinkley case the court must decide if the children should be in the sole custody of the mother or whether there should be some type of shared custody. The trial also demonstrates the role of mental health professionals in a custody fight.

The very public process, the attorneys and the press all try to demonize or to paint parties as “all good” or “all bad.” In my experience, this is often not the case. In most cases, the spouse you loved and married years ago, did not over-night morph into some unrecognizable evil force. While all the parties to the process are flawed, they have good attributes as well.

At the end of the custody battle like Christie Brinkley’s, there are no winners, only losers. The parties will not only have lost their dignity, they will also have lost the ability to share, together, the joy of life’s great events like their children’s graduations and weddings, or even the birth of their grandchildren.

The children will certainly lose. In the end, they will be drawn into the “battle” and become alienated from one, or both, of their parents.

In the end, the lesson from these trials should be that divorcing parents should, to the extent possible, agree that they cannot live together and that the marriage should end. While there may be some dispute over economic issues, parents should, to the extent possible, work together to find a way to share responsibility for raising their children

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The New York State Bar Association has produced a video “The Divorce Process in New York: What you Need to Know “ which can be viewed online by hitting the hyper-link.

The video provides a good overview of the law in New York, covering  topics such as child support, maintenance, equitable distribution and domestic violence. It even addresses attorneys’ fees and retainers.  

For those new to the divorce process, it  would be beneficial to view the video before  having a consultation with an attorney.

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Following up on yesterday’s posting is this article, in today’s New York Post, (in which I was quoted).

The floodgates have opened; there will be thousands of same-sex marriages performed in California in the near future. In the aftermath, I anticipate a wave of same sex divorces.

At least, one court has already recognized the right of same sex couples to seek a divorce in New York.

 In order to avoid the pain of divorce, same-sex marriage couples should be urged to proceed with caution. As pointed out in the Post:

Fools rush in, they said, even gay fools.

"It's not a decision to rush into," said Jim Key, a spokesman for the LA Lesbian and Gay Center.

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Mark Wortman in the Missouri Divorce and Family Law Blog supplies multiple answers the question, why do you need a lawyer.

Among the reasons given are:

•  The attorney can take much of the burden off of the litigant, reduce the length of the case, and hopefully negotiate a settlement where everyone wins and nobody goes to court.
• You wouldn't perform your own surgery, why would you try to take on the court by yourself. Divorce lawyers are here for a reason.
• Whatever your argument, the judge has heard it before. The attorney knows how to pick the battles and keep you on the judges good side.
• Family law is not like other areas of the law. A skilled negotiator is superior to a combative lawyer or litigant who wants to fight about everything.

Mark diplomatically stops short of quoting the old adage that anyone who attempts to represent himself in court has a fool for a client. Though this expression has become a cliché, it is also true.

You should retain a divorce lawyer because he is expert and knowledgeable in the field. As a self represented litigant, you may not understand the relative strengths or weaknesses of your case, the limits of  your rights or the full extent of your liabilities.

To put it in context, would you, as a pro se litigant, know how to distribute a professional license or an educational degree?

Moreover, the law is ever changing. The practitioner through participation in professional associations, continuing legal education and daily practice, keeps abreast of the evolving case law and statutory changes.

Finally, legal representation brings objectivity to a case. As a litigant, you may be simply too close to the litigation to make reasoned business-like decisions. A good practitioner will set out options and assess the risks of litigation.

In the end, most litigants want a fair resolution with an end to the divorce litigation – a good attorney will lead you there.

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In any litigation, in which the court must render an order or judgment, there is a winner and there is a loser. Sometimes, the court will even telegraph its decision, in advance, in order to facilitate a settlement discussion.

Most clients, when informed of an adverse decision (or even the potential for one), will, as a knee jerk reaction invariably say, “Let’s Appeal!” or “If the judge does that, we will appeal.”

Without even addressing the fact that not every decision is appealable, the odds are that an appeal will NOT be successful. To the contrary, most appeals are unsuccessful.

Dick Bailey Service, Inc., an appellate printer, recently sent me statistics it compiled of the appeals submitted to the Appellate Division, Second Department from January through June 20007. Not surprisingly, in 52% of all cases appealed, the trial court’s order or judgment was affirmed (the appeals court agreed with the trial court); sixty two (62%) percent of all matrimonial cases were affirmed.

Less than, one quarter of all cases, but only 14% of the domestic relations cases were reversed. In eleven percent of the cases, the lower court decision was somehow modified.

These statistics illustrate the fact that an appeal in a matrimonial case has only about twenty five (25%) chance of either reversing or modifying the underlying order or judgment.







.

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Over a year ago, New Jersey recognized irreconcilable differences as grounds for divorce. So, what can New York lawmakers, who have been struggling to enact a no-fault grounds for divorce, learn from New Jersey’s experience?

According to the New Jersey Lawyer, “The law stands as a classic case of a proposal lingering for years in the state legislature based on opposition from religious groups and, when finally enacted, is actually heaped with praise.”

In the absence of a no-fault or irreconcilable differences ground for divorce, the parties need allege and prove marital fault. Prior to the enactment of New Jersey’s irreconcilable differences grounds for divorce, extreme cruelty was a common ground for divorce.

“All attorneys interviewed agreed that a detailed filing under extreme cruelty had the potential to create an especially combative and mean-spirited divorce proceeding.” The new no fault law has effectively defused some of the animosity.

“Unlike the extreme-cruelty standard, an irreconcilable-differences filing "starts the litigation off on a positive note; you don't have to start the litigation with smearing the other party," added Paterson lawyer José I. Bastarrika.”

The attorneys and judges interviewed, not surprisingly, acknowledged a drastic reduction in cruelty filings.

Perhaps one day, New Yorkers, after enacting a no-fault divorce law, will like our New Jersey neighbors, will look backward and wonder, what was all the fuss about.

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As reported on Law.com, a Brooklyn judge refused to recognize the validity of a divorce granted by an Israeli court. The Israeli divorce was based upon a “get,” a religious decree of divorce granted by a rabbi.

The Court found that allowing a get to serve as the basis of a valid divorce would provide an end-run around the New York's fault-based divorce laws.

"If this court were to sanction the utilization of a 'Get' to circumvent the constitutional requirement that only the Supreme Court can grant a civil divorce, then a party who obtains a 'Get' in New York could register it in a foreign jurisdiction and potentially, later on, rely on the 'Get' to obtain a civil divorce in New York thereby rendering New York State's Constitutional scheme as to a civil divorce ineffectual," Supreme Court Justice Jeffrey S. Sunshine of Brooklyn ruled in Tsirlin v. Tsirlin, 20542/0.

Commentators have found this to be a curious decision.

It's most unusual for a domestic court to look at the reasons behind a foreign divorce decree.

It'll be interesting to see how the decision not to give comity plays out in other situations. How would it apply when you have an administrative divorce from Japan, which is alien to our system, or a divorce from a country that allows divorce for grounds that we find unusual?"

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When an action for a divorce is commenced, it is often the case that most of the marital assets available for the payment of legal fees are possessed or controlled by one of the spouses, usually the husband. In order to ensure that the parties will have equal access to skilled legal representation, the Domestic Relations Law authorizes awards of interim counsel fees to the nonmonied spouse during the course of the litigation. Because of the importance of such awards to the fundamental fairness of the proceedings, we hold that an application for interim counsel fees by the nonmonied spouse in a divorce action should not be denied — or deferred until after the trial, which functions as a denial — without good cause, articulated by the court in a written decision.

So reads the first paragraph of the Appellate Division decision in Prichep v. Prichep, which offers a primer on interim awards of counsel fees in divorces.

In Prichep, a wife with an annual income of only $4,000, sought an interim award of attorney’s fees from her husband, a cardio-vascular surgeon, with an annual income in excess of $400,000.00.  By the time of this application, she had already owed her attorneys more that $159,000.

As the court explained, an award of interim counsel fees ensures that the non-monied spouse will be able to litigate the action, and do so on equal footing with the monied spouse. This award may be:

appropriate to prevent the more affluent spouse from wearing down or financially punishing the opposition by recalcitrance, or by prolonging the litigation'" If the playing field were not leveled by an award of interim counsel fees, "a wealthy husband could obtain the services of highly paid (and presumably seasoned and superior) matrimonial counsel, while the indigent wife, essentially, would be relegated to counsel willing to take her case on a poverty basis.

The Court was sensitive to the disparity in the Pricheps’ financial resources. The wife had incurred large legal bills that she would never be able to pay without exhausting all, or most, of her resources. The husband, on the other hand, was able to pay his legal fees without any substantial impact upon his lifestyle.

The Appellate Division recognized that deferring the award of attorneys’ fees until the final resolution of the case, could compromise the non-monied spouse's ability to adequately litigate. How long can an attorney be expected to work without being paid? Absent an ability to pay, certain theories of prosecuting or defending a case have to be abandoned, giving the wealthy spouse an unfair advantage.

Indeed, until this court’s ruling, Mrs. Prichep’s attorneys had to decide whether it was better to: 1) withdraw because their client could not pay their bills, 2)continue to represent their non-paying client, run up a large bill, and gamble that the court would grant them their fees at the conclusion of the litigation; or 3) simply to work for free. Mr. Prechep’s attorneys, on the other hand, would, in all probability, be regularly paid in full.

Fortunately, the Court realized, this just would not be fair

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As part of a divorce, the marital home is generally sold. But, in view of the slow down in the home sales market, it is possible that the proceeds from the sale of a home may be insufficient to fully pay off the mortgages on the property.

In a prior post, I explored the option of retaining possession of the martial home to avoid selling at a loss. For some, this is simply not an option and the home must be sold. Most couples cannot or simply do not want to continue living together after a divorce. Many cannot afford to maintain the marital home on their own.

The New Jersey Law Blog offers great insight in dealing with the situation  when the sales price martial home is insufficient to satisfy the mortgage.

If the homeowner is unable to obtain a sales price which enables him to pay off all loans and closing costs, and he does not have the funds to make up the difference, then he may want to try to obtain approval from his current lender(s) to accept an amount less than the full amount due on its mortgage. For a lender, this may be acceptable to obtain repayment of a substantial amount of its loan and to avoid the costs and delay of foreclosing on the loan. This will generally mean that the Seller will not receive any funds from the sale of his home.

In order to obtain such approval from a lender - which may or may not be granted - the homeowner needs to contact his lender(s) to determine what information they will need to make their decision. This usually includes a financial statement of the homeowner, copy of a contract of sale, appraisal, and other pertinent documents. Generally, a lender will not consider approving a short sale without a clear economic hardship on the part of the homeowner and an existing default or pending foreclosure.

Until recently, forgiveness of a debt under these circumstances, could trigger a taxable event according to the IRS. This means that if a lender forgave a part of the mortgage debt by accepting a reduced amount in full satisfaction of the loan, then the amount forgiven could be deemed taxable income to the homeowner. This was so even though the homeowner received nothing from the sale. However, in December 2007 Congress passed the Mortgage Forgiveness Debt Relief Act of 2007. This Act amends the Internal Revenue Code to exclude from gross income amounts attributed to a discharge of indebtedness incurred to acquire a homeowner’s principle residence. The amount of the debt forgiveness can be up to $2.0 million. Thus, a homeowner is now able to sell his home for less than what is owed on it without incurring an additional tax liability. This exemption for forgiven debt, however, is only temporary and expires within three years.

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Following up on yesterday’s post about disgruntled spouses airing their dirty laundry on the internet, the front page of the New York Times featured the article When the Ex Blogs, the Dirtiest Laundry Is Aired.

According to the article, it is now fairly common to write a blog about your divorce.

It is impossible to say just how many people are blogging about divorce, but the percentage of Internet users with personal blogs has quadrupled in five years, according to Pew. Mary Madden, a senior researcher with the Pew Project who specializes in online relationships, said that in emotionally charged times, some people go to the Web.

Since one person’s truth may be shaded by hurt, anger, betrayal or just a desire to seek revenge, it is no shock that some aggrieved spouses have gone to court to stop the publication of the blogs.
Absent a confidentiality clause or other provision limiting the right to discuss the divorce or marriage, the blogger may enjoy a first amendment freedom of speech.

But, as one court recently pointed out, While Laurie’s statements may be covered by the First Amendment, they were “ill-advised and do not promote co-parenting.”

I suspect there would be little dispute, particularly when there are children, that parties should not post information about their spouses’ personal failings and short-comings on the internet where the writings can easily be found.   While writing all the your thoughts and feeling may be therapeutic, maybe all the thoughts should be contained in, to quote the Moody Blues, “letters are written, never meaning to send.”

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Discretion, being the better part of valor, it is seldom a good idea for a party to a divorce, to publicize the gory details of their case. But one ill-advised wife went even further;   she made  a You Tube video so she could air her dirty laundry.

In her video, Tricia Walsh Smith discuss her sex life (or absence of) with her husband, her husband’s stash of porn, condoms and Viagra, her relationship with her step-children and the terms of her pre-nuptial agreement.

As pointed out in the Legal Blog Watch:

A number of divorce lawyers interviewed for an Associated Press story criticized Walsh-Smith's tactics.  Attorney Bonnie Rabin commented that You Tube videos "bring the concept of humiliation to a whole new level."   Moreover, videos can ultimately hurt litigants -- a judge might question a party's judgment in posting a video and hold it against him in ruling on the case.  And there's always the possibility of a defamation action if the video rants include intentionally false information.

Walsh-Smith is now represented by famed divorce attorney Raoul Felder -- though she wasn't his client when she made the video.  Felder told AP that he thought his client "comes off well."  However, the majority of commenters on the video disagree; many labeled Walsh-Smith a "gold digger," with one even comparing her to another Brit involved in a contentious divorce: Heather Mills.

This video is simply an awful idea. It should not be emulated.   Despite Ms. Walsh’s attempt to portray herself has a naïve spouse, rejected by her husband, she comes across as shrew, mean and vindictive. 

The video is intended only to embarrass and humiliate her husband. It can also be viewed as a not so veiled threat as to what may follow if her husband does not capitulate to her demands.   Either way this type of conduct is reprehensible.

If this type of public broadcast of martial differences ever caught on, I would expect it to be negatively considered in decisions awarding equitable distribution, maintenance and, most certainly, child custody.

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They started to the fight
When the money got tight . . .
                Billy Joel, Scenes from an Italian Restaurant

With all the talk about recession and the fall-out from the sub-prime mortgage crisis, it is no surprise the telephones in most divorce lawyers’ offices are ringing off the hook. I have even noticed that the numbers of readers of this blog has dramatically increased in the last several months.

Jeffrey Lalloway in the California Divorce and Family Law blog notes:

The sharp downturn in the market is taking a similarly painful toll on couples who are breaking up. But now it's not that they can't afford their next home, but that they can't get rid of the old one. . .

"The housing market is having a major impact on divorce cases," said Stephen Ruben, a certified family law specialist in San Francisco. "If a house doesn't sell, it has a major impact on cash flow for child support, on where people live, on future taxes.

In the midst of the housing boom, when a couple divorced, the marital home was sold and the parties could simply cash out. The dispute was oft motivated by greed; each of the parties would argue to maximize his/her interest in the marital home and the size of his/her profit.

In the present economic environment, the marital home may still be sold, but if there is insufficient equity, the parties may be fighting how the loss will be split. As a result, instead of taking a profit at closing, the parties may argue about who will pay to cover the mortgage short-fall.

Mr. Lalloway notes that some couples, rather than taking the loss on the sale of the home, are forced to continue to live together until they can afford to sell the property. In other cases, one party gets the right to remain in the home.

Both scenarios trigger other considerations.   Parties forced to continue to live together, simply are denied the ability to get on with their post divorce lives. How possibly could you move on if your spouse is sleeping in the adjoining room?


Even if only spouse remains in the home, post divorce- the parties have to address:

• What will trigger the sale of the home?
• Who pays the mortgage?
• Does paying the mortgage increase the payer's equity?
• Who gets the mortgage interest deduction?
• Who is responsible for the maintenance and repair of the marital home?

To paraphrase another song, breaking up just got harder to do.

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There is a story on CNN about  "Divorce Celebrations"

It makes perfect sense to mark the occasion of a divorce with an “event.”  Unquestionably, divorce, like marriage or death, is a life changing event. It is the legal recognition of the end of a marriage.  This major event  unceremoniously occurs with the stroke of a judge’s pen and your lawyer’s handshake as he bids you goodbye and wishes you good luck in the future.

It is natural to be depressed or even angry when marriage is terminated by divorce. Notwithstanding the fact that half of all marriages end in divorce, society still views divorce as some type of failure; litigants may cast themselves as winners or losers.

When a marriage ends because of the death of one of the parties, there is an accepted grieving process; there is a funeral, a wake, or a shiva. Why should there not be some type of social acknowledgment or ritual to mark the end of a marriage by divorce?

If just discussing divorce in public seemed taboo a few years ago, the growing trend of divorce celebrations is helping lessen the stigma surrounding the end of marriage.


"Yes, it's sad and it's painful, but it's not failure," says Christine Gallagher, the owner of Los Angeles event company The Divorce Party Planner and the author of a book by the same name. "It's part of life, and yet it's the only major event for which we have no ritual.

"A celebration communicates that divorce is OK -- life-affirming, even." . . .

 "It's like an Irish wake. Just because there's been a death doesn't mean you can't have food and drink, acknowledge the past and hope good things for the future. It's about closure."

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Phil Bernstein, in his New York Probate Litigation Blog, highlights several issues about the impact on divorce on an estate plan. In his post, Phil reminds us of the importance of finalizing the divorce settlement as soon as practicable.


You cannot disinherit your spouse during the marriage. Each spouse has an “elective share” in the estate of the other. If you attempt to disinherit your spouse during the marriage, he/she can elect to take his/her elective share (about 1/3 of the estate if there are children of the marriage and ½ if there are no children).

Most settlement agreements contain provisions wherein each spouse waives their respective rights of election and any interest in the other’s estate. If you should die before an agreement containing these waivers is signed or before the court enters a judgment of divorce, your estranged spouse can (and probably will) exercise the right of election and inherit from you.

I had at least one case wherein a wife prolonged the divorce because her husband was ill and she was gambling that her husband would pass away before the divorce was granted and her right of election was extinguished.

The only way to ensure that your estate goes to your intended beneficiaries and not your estranged spouse is to make sure that the divorce settlement agreement is promptly signed.

Mr. Bernstein aptly suggests that you check all of the beneficiary designations of your insurance and retirement plans. If your former spouse is named as a beneficiary, he/she will be paid when you die

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I am back from a much needed warm weather winter vacation with the family. Now, back to blogging.

While I was away, Justice Laura Drager rendered an important decision in the case Beth R. v. Donna M. Following the decision in Martinez v. Monroe County, which I discussed here, Justice Drager ruled that a same-sex marriage, validly entered into in a jurisdiction that allows same-sex marriages, would be entitled to full legal recognition in New York. This is the first time that a New York court recognized a same sex marriage in the context of a same-sex divorce action.

The decision went further, applying the expanding theory of equitable estoppel, to address the issue as to whether Beth's motion for declaration of her parental rights can be entertained by the court since she did not legally adopt the two children but served as their mother in fact. The Court concluded that “the facts here warrant granting Plaintiff's motion to enable this court to determine whether the best interests of the children warrant granting custodial rights to Plaintiff.

As pointed out in the Leonard Link:

Although Defendant did not allow the adoption of the children, she held out Plaintiff to the world, and most important, to the children, as their parent. The children were given Plaintiff's last name. The birth announcements presented Plaintiff as the parent of each child. J.R. [the older child] was encouraged to call Plaintiff 'mom' and Plaintiff's relatives by familial titles. The extended families of each party were encouraged to treat Plaintiff as a parent. Defendant held out Plaintiff as a parent to the children's nanny, doctor and J.R.'s teachers and school administrators. Defendant accepted health insurance and financial contributions from Plaintiff for the benefit of the children.

And, of course, there is the marriage. "Although Defendant seeks to minimize the significance of the act of marriage, the law does not share her view. Marriage is 'a status founded on contract and established by law. It constitutes an institution involving the highest interests of society. It is regulated and controlled by law based upon principles of public policy affecting the welfare of the people of the State.' Fearon v. Treanor, 272 NY 268, 272 (1936). As a result of being married, Plaintiff may be constrained to provide support for the Defendant and Defendant would be a recipient of a portion of Plaintiff's estate. These factors significantly affect the children's welfare. Moreover, although people enter into marriages for many reasons, creating familial bonds is one of the most significant reasons, particularly for the benefit of their children. The parties here were clearly committed to becoming married, having traveled twice to Canada and having obtained two marriage licenses. It is noteworthy that the Defendant voluntarily entered into the marriage after her first child was born. Furthermore, as Plaintiff argues, the artificial insemination during the marriage resulting in the birth of S.R. may require a finding that she is the legitimate child of both parents."

Justice Drager also notes that by age three a child "clearly identifies with parental figures" and so J.R. could be harmed by suddenly terminating his relationship with Beth, and it is "conceiveable" that young S.R. could be harmed as well. And, of course, both children would suffer potential economic harm due to loss of support.

Now that the door is open to the judicial acceptance of same sex marriage, it will be interesting to see how the law evolves to provide for same-sex divorce.

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An adulterous relationship does not necessarily always lead to divorce. The blog, Domestic Diversions offers insight on how to save your marriage after an affair.

The adulterer must be willing to disclose all the details of his affair and agree to new degrees of openness, says Rick Reynolds, founder of the Affair Recovery Center in Austin, Texas.****

It’s not always just the spouse who committed the transgression who has to change after an affair if a marriage is to recover.
Often it’s difficult for the betrayed party to consider what he or she could have done that may have helped lead to the affair, says Meg Haycraft, a Chicago couples specialist who founded a practice called TWOgether. That’s not to say that someone can blame their partner for an affair, she added.  ****

Reynolds] counsels the spouse who cheated to answer any question his or her partner has. But he also sets a date when the questioning must end.

In the end the person who cheated must admit that he/she made a mistake. Then, the parties have to be committed to restoring trust to their relationship.   

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For some reason, Valentine’s Day brings on lots of articles about divorce. Jonathan Clements (no relation) wrote an interesting piece in the Wall Street Journal about his “fairly successful” divorce.

Success, he properly points out, does not mean he took his ex-wife to the cleaners or that he extracted every concession he could from her. To Clements, a successful divorce means that while he and his ex are not best friends, they each benefit from having a civil relationship in which they both get to share in the joys and pains of raising their children.

Clements, armed with the perspective of looking backwards, offers some invaluable divorce tips:
.

Avoid the legal arms race because it will hurt both of you.
As you negotiate a settlement, every dollar of legal costs incurred likely means 50 cents out of your pocket. Trust me: There are cheaper ways to work through your anger.


Having the ex-spouse around the corner might seem uncomfortably close.
But if you have children, it probably means you will see less of your former spouse. There are no awkward drop-offs and pickups. Instead, the kids just walk back and forth.


Maintain a reservoir of goodwill, because you'll need it.
It will be your week with the kids, your boss will have other plans -- and you may need your ex-spouse to bail you out.


If your ex ends up with a little more money in the divorce or goes on to do well financially, don't let it eat away at you.
In all likelihood, your children will be the ultimate beneficiaries.


Think of your relationship with your ex-spouse as a business relationship.
Forget the bad blood. Ignore stuff that isn't your business. Instead, focus on the task at hand, which is raising the children.

Divorce is a process- it is not an end result. At the end of the process, you may want and even need your ex to help nurture, support and even discipline the children.

Bottom line- burning bridges during the divorce may later preclude you from sharing in the joys and responsibilities of being a parent. .

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Incident to the divorce, the wife has the option of returning to the use of her maiden name. The decision to return to a maiden name is highly personal.

The blog,   Seven Secrets to a Successful Divorce, offers up one woman’s struggle with the dilemma over her name.

Initially decided to return to my maiden name and asked for it to be changed at my final divorce hearing. But then something strange happened. As the months passed, I continued to use my married last name, putting off changing my driver's license and credit cards. Something just did not feel right about changing my name back to the name I once used long ago. I felt like I wasn’t that person anymore, yet I also did not feel comfortable using my married last name. I certainly was not the same person who used that name either.

In the end I decided to give myself a new last name. One that I choose. I shortened my married last name and gave myself a brand new identity. I went to court and legally changed my name. It felt right and it was empowering to begin my new life after divorce with my own chosen identity, not the name I was born with and not the name I got from being married.

There are several issues to consider when deciding whether or not to keep your married name after a divorce. Here are few:

1. Your children. Do you want to avoid confusion at school by keeping the same last name as your kids?

2. Paperwork. Changing your name means changing your driver's license, bank accounts, credit cards and countless other documents. Expect to spend time and energy taking care of this.

3. Have you established yourself professionally with your married name? If so you may not want to change it.

In the end, make sure it is your own decision to change or not change your last name. Don't give into pressure from your ex, who may object to you using your married name. It is perfectly legal to continue to use your married name after a divorce. If you no longer wish to use your married name, then make sure you are comfortable going back to your maiden name. If not, you may want to do like I did and create your very own new last name.

Clearly, there is no wrong or right answer to the name game.  Your name goes to the very nature of your identity.    If, later, you feel you made the wrong choice, you can even start another action to legally change your name.

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I just wanted to announce the debut of the new and much improved Clementlaw web-site.

The Practice Areas part of the site provides some useful and practical information about divorce, separation, child custody, equitable distribution, the different types of marital agreements and other areas under the broad umbrella of family law practice.

You are invited to explore. I would love to hear your comments as to its user friendliness and readability.

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I will be interviewed on WFUV-FM (90.7) this Saturday, December 29, at 7:30 a.m. on the program “Cityscape.” The interview will cover a wide range of issues on the subject of divorce.

If you are not an early morning riser, the broadcast will be available as a podcast. When it becomes available, I will post the link.

The broadcast will also be available in the Cityscape archives next Wednesday.

This may be the final post for this calendar year- so I am wishing you and your families a very Happy, Healthy, and Prosperous 2008.

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A husband was justified in abandoning his wife after she admitted having an adulterous relationship. When the wife sought a divorce after her husband left her, her abandonment claim was dismissed.

The New York Legal Update provides the details of the case of Kaplan v. Kaplan:

In that case, during a marital counseling session, the wife admitted to a long term extramarital affair. Thereafter, the husband moved out of the marital residence. More than one year later, the plaintiff-wife commenced the action for divorce, after 17 years of marriage, on the grounds of abandonment and cruel and inhuman treatment. The defendant-husband moved for summary judgment dismissing the action. The Supreme Court granted the husband's motion, and the Second Department affirmed.


The Second Department noted that in order to be granted a divorce on the grounds of abandonment, a plaintiff must demonstrate that the defendant unjustifiably and without the plaintiff's consent abandoned the plaintiff for a period of one or more years (see Domestic Relations Law § 170[2]). Here, The Court found that the husband was justified in leaving the marital residence because of his wife's extramarital affair. Thus, there was no abandonment, and the wife was not entitled to the divorce on this ground.


With respect to cruel and inhuman treatment the Court noted that the marriage was one of long duration, and thus, a high degree of proof was required for termination on the ground of cruel and inhuman treatment. And here the Court found that the plaintiff-wife's allegations of embarrassment and discomfort were insufficient to establish cruel and inhuman treatment

I am going to guess that money was the real issue in this case. What else could motivate the husband to oppose the divorce? Clearly, the marriage was dead - the husband moved from the marital home and the wife was having an affair. Since the Wife failed to prove grounds, the court did not have to address the issue of equitable distribution.

Without no-fault grounds for divorce, the wife is locked in a dead marriage; only the husband has grounds. As a result, the husband can extort economic concessions from the wife in order to secure a divorce.

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I was quoted in an article on AOL highlighting the Top Five Mistakes to Avoid in a Divorce.

According to the article, the top five mistakes are:

1.Failing to be prepared with copies of all relevant financial and legal documents;
2.Failing to obtain financial advice as part of the divorce. Parties often fail to consider impact of taxes on the assets to be distributed. Other assets need to be appraised;
3.Failing to sell the marital home when you can ill afford to remain in it;
4.Failing to explore settlement or other avenues of dispute resolution and, instead, rushing into court; and
5.Failing to untangle assets and debts acquired during the marriage.

The list is far from exhaustive. In fact, the number one mistake on my list would be using the divorce to punish your spouse. Vindictive conduct or using the divorce to extract revenge only increases the acrimony, unhappiness and the emotional, psychological and economic costs of divorce.

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Everyone is aware of the emotional and economic costs of divorce, but a new study shows that divorce negatively impacts the environment as well.

The basis for this claim is that each time a marriage dissolves the result is two new households using more utilities and other natural resources.

"A married household actually uses resources more efficiently than a divorced household," said Jianguo Liu, an ecologist at Michigan State University whose analysis of the environmental impact of divorce appears in this week's online edition of Proceedings of the National Academy of Sciences.

More households means more use of land, water and energy, three critical resources, Liu explained in a telephone interview.


Households with fewer people are simply not as efficient as those with more people sharing, he explained. A household uses the same amount of heat or air conditioning whether there are two or four people living there. A refrigerator used the same power whether there is one person home or several. Two people living apart run two dishwashers, instead of just one.

While we should all be environmentally conscious, the negative effects on the environment should not be a factor in remaining in a “dead marriage.”

This was really a rather silly study. All relationships have an effect on the environment. Following the logic of this study, while the decision to marry may result in less households (two households become one) and some natural resource efficiency, children will be born of the marriage, resulting in the purchase of a bigger cars to accommodate the growing family and, in all probability, a move to a sub-urban homes further away from couples' places of employment, resulting in longer commutes . . . Eventually, the children will grow up and move away from home to establish their own separate households. The conclusion could then be drawn that marriage and children are bad for the environment.

Someone should explore the impact  of this useless study on the environment. How many trees were destroyed so that the study  could be printed?

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Divorce certainly brings out the worst in people. Some actions and behaviors are occasioned by malice or greed. Others are designed to get a perceived a tactical advantage in the divorce action. Regardless, as detailed in Cathy Meyer’s article, these Dirty Tricks of Divorce will, in all probability, end up harming your case more than they help. These dirty tricks escalate the acrimony and could even pre-dispose a judge against the wrong doer.

Here is Cathy Meyer’s list of dirty tricks, with my two cents added:

• Withdrawing marital funds from joint bank accounts and transferring the money to accounts in your sole control. This transfer will result in the aggrieved party running into court to obtain a restraining order preventing the funds from being squandered.
•  Running up credit cards charges for which the other spouse is primarily liable. This can be prevented by closing joint lines of credit when the divorce is commenced.
•  Refusing to pay any household bills or send any support until forced to do so by court order. This is one of the steps in a routine called "Starve Out The Other Spouse". The goal is to get the other spouse in a financial position where he or she will settle the case out of financial desperation.
•  Refusing to speak with your spouse about anything, including arrangements for him or her to have parenting time with your children. This falls into the category of a tactic used by some lawyers to create conflict, create issues that don't need to exist, increase legal fees and wear the other side down. It can also cause a serious break in parent-child ties if the non-custodial parent doesn't get to see the children because he or she can't set up any parenting time.
•  Filing false reports of domestic violence intended to have your spouse barred from the marital home.

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Adam Liptak, in his New York Times Sidebar column correctly questions the efficacy of requiring service by publication when a defendant in a legal action cannot be located. It is  universally accepted that no one really reads the legal notices published in newspapers.

In a New York divorce action, the defendant must be personally served with the summons. The only time this requirement really becomes a problem is when the whereabouts of the defendant are unknown, e.g., a situation where the parties have been separated for years.

In a case where a defendant cannot be located, the plaintiff may seek an order permitting service by publication after unsuccessfully undertaking a search to locate the defendant. The idea is to give the defendant actual notice of the impending divorce. The only problem – no one really believes that the defendant will actually read the legal notice.

I have a problem with this type of service- it very expensive and it really does not give the defendant notice of the lawsuit.

The publication requirement always struck me as a pointless waste of money,” said Deborah L. Rhode, a law professor at Stanford who in divorce cases has represented poor women forced to buy ads to notify their missing husbands that they had been sued.

“It was particularly ludicrous for our clients, who were below the poverty threshold and had partners who would never be looking at the designated publication,” Professor Rhode said. “It was a form of what we used to refer to as ‘sewer service.’ ” (The term refers to the fraudulent practice of claiming to have served legal papers on someone while actually tossing them in the sewer or trash.)

Ironically, Liptak, a newspaper columnist, acknowledges that the requirement of publication in a newspaper is an anachronism and that service by posting on the internet would be more effective. I agree.

First, there is a greater likelihood that the defendant will get notice of the action on the internet than in a print ad.  Even the most widely read newspaper has a limited geographic reach. The internet is world wide. A person could possibly receive notice of the New York legal action anywhere in the world simply by doing a google search of his/her name.

Second, the cost of posting the legal notice on a designated web site, would be de minimus. The cost of this service could be reduced from several hundred dollars to a few dollars.

Finally, service by an internet posting would be an environmentally sound method of service. Hundreds of pages of news print could be saved a year. If the posting was made through a court run web site, the result could be an infusion of capital to the always cash strapped court system. The only downside to allowing service by posting on the internet is that the newspapers will lose advertising sales

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I stumbled on these article,  about the holidays, loneliness and sadness brought about by  a change, like divorce.

On Thanksgiving, as well as other holidays, most of us have an ideal of how the day should go. We want the house to look perfect, the children to be cooperative, the food to be delicious and plentiful, the relatives to behave. Yet some disappointment is inevitable. For one thing, holidays involve change in the daily routine and even minor changes can be stressful.

For some, the holiday means face-to-face confrontation with major changes. What is supposed to be a celebration seems more like a painful reminder of what was lost and what might have been. Perhaps this is the first year your daughter will be visiting her in-laws out of state. There may be an empty chair at the table because a family member is serving overseas or is in the hospital. Maybe this is the first Thanksgiving after a divorce or a loved one's death.

Remember, you are not alone.   Reach out and get help.

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The Pennsylvania Family Law Blog poses the very practical question- what do to with a gift or inheritance received during a marriage? How can one insure that a gift to an adult child does not end up marital property subject to the other spouse’s claims?

As the blog post points out,

Generally, marital property means all property acquired by either party during the marriage, regardless of whose name it is in. An exception arises for property acquired by gift (except between spouses), such as an inheritance.

In New York, the same rule applies. Provided the gift remains in the sole name of the recipient of the gift, it will remain  that spouse’s separate  property. If the gift is put in joint names, the other spouse could claim that it is marital property and subject to equitable distribution. The burden shifts to the recipient spouse to prove that the property is and was separate property

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Victor J. Medina in the New Jersey Divorce and Family Law blog offers some good guidance in how to select a divorce attorney. I agree with Medina when he states a client should look for a divorce attorney who is flexible in style.

I think all divorce attorneys hear some client question during at the initial consultation:

“Are you a fighter? I need a bulldog on this…” or “I really need someone who is collaborative…can you work with my ex’s attorney?”

My response, like Medina’s, is I can be whatever the situation requires. An effective attorney needs to be practical, pragmatic, creative, and re-active. Seemingly contradictory, it is possible to be both firm and conciliatory or aggressive and fair. Like a good boxer, a matrimonial attorney has to know how to bob and weave to avoid the punishing blows, to jab to wear down opposition, and be willing and able of throwing a knock out punch.

A matrimonial case is not one dimensional- the issues are financial, legal, emotional and psychological. The fight, sometime, may appear to be about money, but it may really be about rejection or control instead. Other times, the dispute may really be just about money. The good attorney will discern which the case is and his adjust strategy accordingly to achieve a result in an expeditious and cost effective manner.

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In Japan, it is now possible to finance a divorce. According to the Financial Post, the Ogaki Kyoritsu Bank will become the first Japanese bank to provide unsecured loans to cover the costs of divorce.

The loans are available to customers between the ages of 20 and 65 with an income of $2 million yen per year or more, and range between $100,000 and $5 million yen to cover support payments, property division and (arguably most importantly for our readers) legal fees.

This type of loan may make some sense for the Wall Street executives, who receive most of their annual income as bonuses or entrepreneurs, whose capital is tied up in some venture. For most, this could be a risky and expensive way of unwinding their marriage.

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The Modern Woman’s Divorce Guide has been running a series of  Weekly Divorce Tips. This week’s tip offers some simple advice for a complex problem- How to tell your children that you are getting divorced.

Telling your children about divorce is challenging, but essential. According to Gary Neuman, a psychotherapist and divorce expert who appeared on the Oprah Winfrey Show a few weeks ago, “the way children are told about their family breaking up is a seminal moment that no child forgets.”

So, how do your tell your children about divorce without scaring them for life? Gary Neuman recommends you do it by following these basic rules:

•“Both parents should be present to tell the children together - with the main message being, you, the children, are still our priority.
•It should not take more than 45 seconds.
•Practice what you’re going to say, before blurting out things that can hurt forever.
•Never disparage the other parent, because it makes your child feel guilty about loving them.”

I offer a few more thoughts:

• Your children are not divorcing your spouse, only you are. If your spouse is bad, imperfect, or completely flawed, let the children discover that themselves. You do not have to flag your spouse’s faults for them.
• Do not make the children choose sides. To the contrary, children should be encouraged to have a relationship with both parents.
• Tell the children, particularly if they are young and may not understand, that nothing they did caused the divorce.
• Re-assure them that both parents love them.

Do you have any tips?  Please share your thoughts and comments.

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Janet Langjahr in her Florida based divorce and family law blog, reports that money does not equate with happiness in marriage. Citing an article, The Rich and Unfaithful, in Forbes, she says that the wealthy are no happier in their marriages than the not as well off.

About half of wealthy people describe themselves as unhappy in their marriages, and just as many admit to cheating on their spouses in the last three years. (Interestingly, more women than men owned up to affairs.)

Somewhat ironically, the excuse cited for unfaithfulness was desire for variety.

Although half of the affluent were unhappy in their marriages, just thirty percent were considering divorce…

It is not terribly surprising that the wealthy may be more divorce adverse. Quite simply, the exit costs may simply be too great. Assets acquired during the marriage have to be equitably distributed. Maintenance to keep a non working spouse in the marital lifestyle may be required to be paid.

A couple, living comfortably, with a million dollars in assets and a nice home with a mortgage could find themselves each with half as much in cash and looking for a new place to live.

There is an economy of scale in remaining in a marriage, even an unhappy one. The same income will not go as far if it must be split between two households. Rather than paying household expenses for a single home, a divorced couple must pay rent or mortgages on two homes, as well as all the other related housing expenses. In the end, there would be less discretionary or play money.

It may be purely economics that keep the wealthy in their unhappy marriages.

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I previously wrote about custody of dogs in divorce actions.

Now, there is a trend to issue orders of protection in favor of pets. The New York Times reported that in one case in Connecticut, a golden retriever was granted an order of protection against one half of a divorcing couple.

As the police tell it, Cassandra Reynolds pulled up in the driveway of her ex-husband’s home in South Windsor to pick up a few belongings.

A dispute ensued. Her ex-husband’s golden retriever approached her, so she kicked it, the police said. The dog yelped. Ms. Reynolds was arrested.

That was on Sept. 23. The next day, a Superior Court judge ordered Ms. Reynolds, 39, to stay away from her ex-husband and his new wife. The judge also ordered her to stay at least 100 yards away from Riley, the golden retriever — or face up to five years in prison and a fine of up to $5,000.

Not surprisingly, pets, like people, are victims of domestic violence. According to the Times, there is legislation pending in other states, including New York, to allow courts to issue orders of protection in favor of animals. While this may be a noble and even necessary measure, I wonder if there is better way to accomplish the same goal.

As one police officer pointed out, “In a dispute, people tend to fixate on things they know will harm the other person.” Let me preface, my next statement, by saying I am a dog lover and owner. That said, is the case of directing anger against the dog in the incident described in the Times article, much different from smashing the windshield of the spouses car? Aren’t both acts really just displaced anger designed to hurt or terrorize the spouse?

Wouldn’t a better solution be to read and write orders of protection issued in cases of domestic violence broadly to protect both the person and the property of the person? Isn’t the symbolic act of violence directed to the property or pets of a person a threat which should be included in any protective order?

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My dialogue with Ben Stevens on the merits of billable hour versus the flat fee in a matrimonial action continues.

Let me say at the outset, that I am certainly no fan of the billable hour. For many reasons, I  prefer the flat fee model. The number one reason, it is predictable. With certainty, I can answer the question every client asks, “How much will this matter cost?” When billing on an hourly basis, I can only estimate, giving a meaningless range.

As pointed out in The Billable Hour: Are its Days Numbered, a flat fee may work on more routine stuff, high-volume work or repeat work, but not on “bet the farm work.”  Certainly, a flat fee arrangement lends itself to an uncontested divorce or the negotiation or review of simple marital agreement.

But does the flat fee really lend itself to an emotionally charged and litigated divorce or custody action? Mr. Stevens states that because he charges his client’s a flat fee he is selective in his case selection, agreeing to represent clients, who, for instance are reasonable in their expectations. That, however, is only half the equation. It takes two parties to reach an agreement. What happens if the other party or legal counsel is not acting reasonably?

Mr. Stevens also contends that the billable hour rewards inefficiency and waste. That statement would be true if one were looking to make a “killing” on a single client. I prefer to treat my clients fairly and build my practice by referrals. A client, who feels that he was treated fairly, is the absolute best source of new business. For this reason, it would be shortsighted to invoice a client for needless work or excessive time charges. .

Regardless, I will accept Mr. Stevens challenge and will accept, at least, one new litigated case on a flat fee basis. I will report my thoughts here. Stay tuned.

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Benjamin Stevens offers a thoughtful series of articles on why attorneys and clients benefit from fixed fees in a divorce action.

Some of the benefits cited by Stevens are:

•Clients know the total cost up front, which enables them to determine prior to retaining the attorney whether or not they can afford his/her services and to budget for the attorney's fees and costs.
•Clients have another basis upon which to compare attorneys, both in the manner they charge for their services (fixed fee vs. hourly) as well as the amount charged ($X vs. $Y).
•Clients never end up in fee disputes with their attorneys, because all fees were negotiated and agreed upon before the representation began.
•This method encourages open communication from the client to the attorney. In hourly billing situations, clients sometimes hesitate to provide information to the attorney because they know that they will incur fees and costs for doing so.
•Clients have a higher level of trust with their lawyers, which results in a better working relationship, which frequently yields better outcomes in the clients' cases.
While a flat fee may be appropriate in a matter where the legal representation is somewhat limited in scope, for instance, representing a litigant in an uncontested divorce. At flat fee may be inappropriate in a litigated matter or in a case where the issues will have to be extensively negotiated.

Too often, and particularly in matrimonial mattes, parties take irrational and economically untenable positions fueled by emotions. In the worst cases, parties, left to their own devises would fight about assets with no value. The billable hour is one mechanism of bringing a litigant back to realty. A gentle reminder that cost of litigating about a particular item exceeds the benefit to be achieved oft reins the client in.

In fact, a client who paid his attorney a flat fee has absolutely no incentive to give up the fight and every incentive to assert a position “on principle.” After all, in the case of a flat fee, the legal bill is the same whether or not you prevail. 

I would expect an attorney, working on a flat fee in a contested matter, to price into his fee the potential for a client to act irrationally and to set the fee on the high side. On the other hand, I have heard lots of complaints about attorneys who do not return clients’ calls (I understand this to be the leading cause for attorney disciplinary action) - maybe these are the attorneys that charged too low a flat fee.

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The odds of a marriage lasting twenty five or even fifteen years are decreasing.

Reporting  on recently released marriage census data, the New York Times noted that more than half the Americans who might have celebrated their twenty fifth  wedding anniversaries since 2000 were divorced, separated or widowed before reaching that milestone.

"For the first time at least since World War II, women and men who married in the late 1970s had a less than even chance of still being married 25 years later."

Of course, one of the reasons for this drop-off is that people are marrying later in life increasing the chances that a spouse will be widowed, rather than divorced before reaching their twenty fifth anniversary.

But the percentage of marriages lasting fifteen years is also declining.  “About 80 percent of first marriages that took place in the late 1950s lasted at least 15 years. Among people who married in the late 1980s for the first time, however, only 61 percent of the men and 57 percent of the women were married 15 years later.”

There really does seem to be a "seven-year itch."Couples who separate do so, on average, after seven years and divorce after eight.

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A number of the presidential candidates are divorced. Fred Thompson, John McCain and Rudy Guliani are all divorced. Should the reasons for their divorces be fodder for their qualifications as President?

For instance, there has been discussion on the blogosphere about Fred Thompson’s divorce based upon “cruel and inhuman” treatment. Does this mean the Thompson was a wife-beater or a victim of domestic violence?  Not necessarily.

As one commenter pointed out in The Atlantic:

Cruel and inhuman treatment" (or something similar) is a common legal cause of action in the divorce law of many states. In states without no-fault divorce, one needs (or needed) a legal cause of action in order to file for divorce. One of those causes of action is "cruel and inhuman" treatment.

In New York, for instance, where a “No Fault” divorce is not an option, unless the parties are willing to be legally separated for a year, their divorce must be fault based. Cruel and inhuman treatment is one available option for a grounds based divorce.

On the other hand, we will never know if Thompson selected his grounds for divorce because it was a means to an end, a quick divorce, or because there were actually incidents of domestic violence. If an irreconcilable differences grounds for divorce was available, would the Thompson’s have pursued a divorce based on cruel and inhuman treatment?

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Divorce is not only rampant in America. Crossroads Arabia reports that divorce is so prevalent in Saudi Arabia that divorce lawyers are turning away new clients.

Sixty-two per cent of marriages in the western region in Saudi Arabia end in divorce, with a large percentage of those being less than 25 years of age.

The number of young divorcees is increasing. Some are getting divorced after one or two years of married life. Coming across a 20-something divorcee is not strange anymore. Khaled Abu Rashid, a Saudi lawyer, said that with a huge number of divorce cases, law firms in Saudi Arabia are burdened with so much work that sometimes they have to refuse taking cases. He said that divorce among young couples was increasing and added that a lot of his clients are between 18 and 22 years of age and that many disputes revolve around child custody.

There are certainly cultural reasons for rampant divorce rate; many of the marriages are arranged. Regardless, I cannot help but wonder if the law in Saudi Arabia is as backwards as New York’s which requires parties to prove marital fault. 

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The New York Times and New York Magazine each report that the uncertain financial markets could lead to a “bull market” for divorce. The periodicals report that wealthy clients in the financial-services industry are being counseled to consider ending their unhappy marriages now, “as a way to cut losses on future payouts.”

This mercenary theory works best for the spouse expecting to receive maintenance or child support and who expects the other spouse’s income to substantially decrease in the immediate future. It would certainly be advantageous to have support payments (which are income dependent) fixed before there is a loss in income.

It is notable that both articles mis-state a basic premise of divorce law. Assets are distributed equitably in New York. This does not necessarily mean that the assets will be divided 50-50 as stated in the articles.

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A new law  (Assembly bill A08273A) was recently enacted that requires parties in an action for divorce to be made aware of the potential loss of their health care coverage obtained through their spouse's health insurance.

The law requires that any agreement between parties in a divorce action contain the following language:

 I fully understand that upon the entrance of this divorce agreement, I may no longer be allowed to receive health coverage under my former spouse's health insurance plan. I may be entitled to purchase health insurance on my own through a COBRA option, if available, other-wise I may be required to secure my own health insurance.

The judgment of divorce will reiterate that the parties understand and have acknowledged the potential loss of medical coverage.

According to the legislative memo the justification for the bill is as follows:

Divorce settlements can be a long, arduous process for all parties involved, therefore it is important to ensure that throughout the course of the negotiations, parties are aware of all issues relating to an individual's well-being once a settlement is reached. Whether or not a party to a divorce action has health insurance coverage once a settlement is reached is of crucial importance, and explicit provisions addressing these facts should be included in any rendered judgment. This legislation ensures that parties who receive health coverage under their spouse's plan are made aware of their loss of health insurance coverage upon the issuance of a divorce.

Although I am unaware of any cases in which a party to a divorce, represented by counsel, entered into an agreement under the false impression that he/she would remain covered by their spouse’s medical insurance, it is certainly wiser to err on the side of requiring full and complete disclosure of all relevant facts.

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Lindsay Loans’ parents divorce highlights one of the problems with the family law system in New York. As highlighted in Newsday, while the parties’ divorce is heard in the Supreme Court, other issues are being heard in the Family Court.

The fact that two courts have jurisdiction to hear and decide some of the issues could lead not only to inconsistent rulings, but also to added confusion, delays and strategic "shopping" for judges, not to mention, increase litigation costs.
 
Newsday provided gave this short synopsis of the Lohan divorce and custody case:

In December of 2005, Michael and Dina Lohan signed a separation agreement. The fight had been heated and [Justice Robert] Ross had shown little sympathy for Michael. In August of that year, Ross wrote in a decision that "for all the defendant's professed interest in his children, his criminal ping-pongs back and forth between cases reflect extraordinary selfishness and gimmicky schemes."

For Dina, he had only praise, saying the care she gave to Lindsay was "a parent's dedication and love for a child."

So perhaps it was no surprise that when Michael wanted to spend more time with his two youngest children, he decided to try his luck before another judge. When he was released from prison in March after serving nearly two years on assault and other charges, Michael filed a petition in Family Court for expanded visitation.

In June, Dina filed a new action for divorce in Supreme Court.

I have personally represented litigants who have related matters pending in three courts: a divorce action in the Supreme Court; an order of protection issued out of the Family Court, and a violation of the order of protection in Criminal Court. This multiple forum scenario gives three different judges opportunity to render a decision inconsistent with other findings in the case.   In an extreme case, a party could have been found guilty of violating an order of protection that should not have been granted.  The acts could even be found to be insufficient to establish a cause of action for cruel and inhuman treatment for divorce.

Some counties have introduced a specialized court where the judge is equipped to handle cases when there is a pending divorce, criminal and family court matter pending. This good idea. There would be one judge who would be wholly aware of all facets of the case. The potential of inconsistent findings and forum shopping is eliminated.

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When a childless couple divorces there is generally no issue of custody, except when there is a dispute about who will get custody of the four legged family members.

The ABA Journal E Report features a case in which a lawyer was appointed as guardian ad litem for a dog in a contested custody dispute. This report lead a columnist for the Times and Democrat to imagine the negotiation for custody of a dog in a divorce:

There would be many issues to discuss: Who will get primary custody and who will get visitation rights? Is joint custody a possibility? With whom does the dog spend holidays? Then there is the issue of doggie support: Who will be responsible for the dog’s veterinary care and the associated expenses? Who will pay for his grooming? Well, at least the couple wouldn’t have to argue about who pays for his education.

In my experience, when a divorcing couple disputes custody of a dog or cat, courts have treated the matter not as a custody dispute but as a personal property issue.

Tell me about your experiences.

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The Family Law Professor Blog and Forbes.com report on an Australian study published in the Journal of Marriage and Family that shows that children of divorced parents “had twice the risk of going through a divorce themselves.”

The study found that family history was more predictive of divorce than genetics.

The research did not completely eliminate all genetic factors, however. According to D'Onofrio, about 66 percent of the increased risk for divorce appears to stem from the simple fact of a person's parents having been divorced. The remaining 34 percent of the risk seemed to be tied to genetic factors, as well as other factors affecting parents and children. . .

The study is unique, the researcher said, because it is based on data from more than 2,300 twins, their spouses and their adult offspring. In other words, many of the younger people in the study are actually cousins who are also "genetically half-siblings," because their aunt or uncle shares their parents' genes.

So, to help separate out the effects of genetics from family environment, the Australian team compared the marital success of cousins who grew up in stable families (no divorce) against cousins who came from families split by divorce.

I suppose that if children are exposed to the notion that marriage is not forever, they may be more accepting of the idea of terminating the martial relationship  through divorce when conflict arises. This would seem to be consistent with the notion that second or third marriages also have a lower probability of success.

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The Appellate Division in Walker v. Walker provides us with yet another lesson on the importance of carefully drafting martial agreements.

In Walker, the parties, in an oral stipulation of settlement, agreed to divide a 75 acre property. The stipulation specifically provided that defendant "would be entitled to one-half or 37½; acres off the westerly side of that parcel of 75 acres (emphasis added)."  Not surprisingly, the parties then had a dispute about how the property was to be actually divided.

On appeal, the Court found that the stipulation was ambiguous,

because there is no mechanism by which to determine how much of defendant's 37½; acres must be from the "westerly side" of the parcel. Stated otherwise, the stipulation provides no basis from which to discern a dividing line.

As the result of a simple, and, perhaps, misplaced “or” in a settlement agreement, the parties were forced to perfect an appeal and to conduct a hearing to clear up the ambiguity and to ascertain their intent at the time (they thought) they settled the case.

The lesson, select the language of agreements carefully. If necessary, give examples. In this case, an illustration on the land survey showing how the property was to be divided would have saved this couple a lot of legal fees and heartache.

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Just when I thought I had seen it all, I received an email “introducing the Wedding Ring Coffin . . . the perfect divorce gift for those who are seeking a light-hearted ritual of closure at the end of their marriage”

You read correctly, a $30 coffin, complete with “brass handles” and a “black velvet lining that sets the ring off nicely”

The Boomer Blog, however, had an interesting take on this, recognizing that, perhaps, divorce is a cottage untapped cottage industry:

Clearly there are a lot of Americans with time on their hands and a few extra pennies in their pocket. And whose to blame them for wanting to part nicely with their past

For marketers this serves as a revelation: the wedding industry is a gloriously profitable one. Why not create a divorce industry—tailored to boomers who are going through the difficult but ultimately freeing divorce passageway and might appreciate a little levity. After all, it’s good to bury the hatchet.

I just wonder, what’s next? Ring burial plots?
Continue Reading...

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The Appellate Division in Van Kipnis v. Van Kipnis enforced a pre-nuptial agreement which the parties entered into in France in 1965.  The agreement provided that “Each spouse shall retain ownership and possession of the chattels and real property that he/she may own at this time or may come to own subsequently by any means whatsoever.”

Although there is a presumption under New York law that property acquired during the marriage is marital, the Court found that the presumption was overcome by the unambiguous terms of the parties’ agreement and their conduct in keeping their assets separate. As a consequence, the parties’ separate assets were not subject to equitable distribution.

In rendering this decision, the Court offered a primer on the relevant law  of matrimonial agreements. Among the basic concepts elaborated upon are:

• There is a "strong public policy favoring individuals ordering and deciding their own interests through contractual arrangements" (Bloomfield v Bloomfield, 97 NY2d 188, 193 [2001] Thus, "[d]uly executed prenuptial agreements are accorded the same presumption of legality as any other contract.”
• "Agreements are to be construed in accord with the parties' intent."
  
• The best evidence of what parties to a written agreement intend is what they say in their writing."
• A written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms.
• Extrinsic evidence of what the parties really intended is generally inadmissible, and will be considered only if the agreement is found to be ambiguous, W.W.W. Assoc., v Giancontieri 77 NY2d 162 [1990]).
• Extrinsic evidence may not be utilized to create an ambiguity that would otherwise not exist

The decision can be read here.

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Governor Spitzer signed into law, this week, a bill amending Domestic Relations Law  §250, tolling the three year statute of limitations for commencing an action or asserting a defense that arises from a pre-nuptial or post nuptial agreement until service of process has been completed in a divorce action or until one of the parties dies. The law does not apply to separation agreements or agreements entered into during the matrimonial action.

What this means in plain English is that a party does not have to take any action to enforce or to declare void a marital agreement until an action for divorce or annulment is commenced.

This amendment makes sense. It would be impractical to require a party, during an intact marriage, to contest or change the terms of prenuptial agreement. Under the amended law, any dispute over the marital agreement would need to be asserted within three years of the commencement of a matrimonial action.

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I thought it would be great to end a hot summer week with three strange tales of  parrots ratting out their owners, who were committing adultery.  Thanks to Stephen Worrall at the Georgia Family Law Blog for finding this piece on DarnDivorce.  

:November 19, 1937: According to the LA Times, Mr. James J. Reynolds wanted to put his parrot on the stand to testify concerning its knowledge of the domestic affairs of him and his wife by showing that the bird had learned to call Reynolds certain abusive names and that the bird’s teacher could have been none other than Mrs. Reynolds. Superior Judge Brand, however, refused to allow a parrot to testify declaring the procedure was a little too irregular in that the parrot probably could not be placed under oath and furthermore probably could not recall who had taught it anything it might have learned.”

November 28, 2005: Frank Ficker of Freiburg (try saying that five times straight) thought he had it all: successful wife, nice home, and a mistress on the side. But the family parrot, a pro at imitating Frank, spilled the beans on his cheating ways. That’s how Mrs. Ficker found out about her husband’s affair with a woman named Uta. “Hugo always liked to mimic Frank and he could do his voice perfectly,” said his wife. But one day Mrs. Ficker heard the bird repeating something she’d never heard before. “I heard him doing Frank’s voice, but saying ‘Uta, Uta,’” she said. According to DW-World, the unfamiliar word got the wife searching their house where she eventually came across two plane tickets to Paris, one for Frank, another for Uta (who was, evidently, the other woman.) “I kicked him straight out,” she said. “It’s just me and my parrot now.” Divorce proceedings are pending.

February 27, 2006: Argentina - Angry wife Rosella DeGambos got her blabbermouth parrot Bozo to testify in court, who then spilled all the family secrets within a two-hour appearance. “I knew he’d seen everything that my husband Carlos did when my back was turned,” Mrs. DeGambos said in an interview about her bizarre divorce court ploy. “And I knew he had the vocabulary to describe what he’d witnessed. According to Nature’s Corner, the parrot described three “pretty dollies” that Carlos had “tickled” while his wife was away. He also identified the women in photographs, calling them by their correct names. “I used to think that Carlos was a faithful husband but Bozo let me know about a year ago that something was up when I wasn’t home,” Mrs. DeGambos said. “He was using new words, words of love. And he began giggling in a high-pitched feminine voice. He kept saying, “No Carlos, not here,” and things like that. I knew if the lawyers could get him to testify, there was plenty of information they could get from him.” Shown one picture of the 23-year-old beautician Carlos allegedly wooed in his home, the bird shrieked, “Honeybun, I love you.” When Mrs. DeGambos’ attorney asked the bird, “Who loves Carlos?” the winged witness said, “Ruby loves Carlos, Ruby loves her baby.” Coincidently, Ruby is DeGambos’ young and voluptuous secretary. Judge Agusto, let Bozo’s testimony stand and granted the Mrs. her divorce. The first such ruling in the world.

I guess if you are going to cheat on your spouse, you better keep it secret from your pet as well.

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The Oklahoma Family Law Blog highlights some of the basic tax concerns that need be considered in connection with divorce.  

• Alimony is taxable and deductible. The person who provides alimony can claim the payments as a deduction, while the person who receives it can avoid a large end-of-year tax bill by paying estimated taxes during the year. Unlike alimony, child support is not deductible or taxable.
• Who claims the children? The parent who has custody of a child usually can claim the child as a dependent. However, with the custodial parent’s consent, the parent without custody can claim the child. (The custodial parent may still be able to claim certain tax benefits related to the child, including head of household filing status, the Earned Income Tax Credit, and the child-care credit.)
• Who is a head of household? There are several factors for determining the head of a household. A few include being considered “unmarried” on the last day of the year, having children or other dependents who live with you, and paying more than half the cost of providing a home for dependents. Taxpayers should consult with a tax professional to determine if they qualify for head of household status.
• Divorce, annulment and legal separation are considered the same by the IRS for tax purposes. The way a tax return is affected by the situation depends on how the decree is worded, and in cases where state and federal law differ, the IRS will side with the federal government.

Taxes may even be used to facilitate settlements. For instance, by using the differential in tax rates between spouses, a settlement can be structured so that, in essence, taxes subsidize some maintenance payment.

For this reason I suggest that a settlement proposal be examined by a tax professional or a certified divorce financial planner.

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The Wall Street Journal in an article entitled Divorce: Counting Money Gets Tougher, highlights the common mistakes made by unwary litigants. These mistakes can have dire tax consequences.

Some common blunders: Dividing a stock portfolio down the middle without checking for losses or gains -- which can trigger either a tax break or a big capital-gains tax hit.

There are steps you can take to avoid house-related tax hits. If you keep the house and retitle it in your name, but end up selling it after the split, you may be able to shield only as much as $250,000 of the gains from capital-gains taxes. Consider selling the house while you're still married, or include specific provisions for the sale of the house in the divorce decree, to shield as much as $500,000 from capital-gains taxes.

The QDRO -- short for Qualified Domestic Relations Order -- is a court order that spells out who gets what in an employer-sponsored retirement plan such as a pension or a 401(k). QDROs must be approved by both the employer's retirement-plan administrator and the divorce-court judge.

The document lets you make transfers to an Individual Retirement Account, or make early fund withdrawals from the plan without paying the usual 10% IRS penalty if you're under age 59½. (You'll still have to pay income taxes on withdrawals.)

Try to complete the QDRO before the divorce is finalized. Otherwise, if your ex should die, remarry or leave the company, it may be tough to receive any retirement money.

Adding to the confusion, IRAs don't require QDROs. If you write it in your divorce agreement, you can split an IRA by transferring the funds directly into other IRAs without being subject to penalties or taxes.

If you're paying alimony, you can claim the payments as a deduction. But if you receive alimony payments, they count as taxable income. Child-support payments are neither deductible nor taxable.

Other tips: Take out a term life-insurance policy on the alimony-paying spouse. And update wills, trusts and beneficiary designations on retirement plans and insurance policies, so that your ex doesn't end up inheriting an unintended windfall.

An easy way to avoid making bad financial decisions incident to the divorce is to consult with a certified divorce financial planner. I have found, in some cases, a certified divorce financial planners assistance to be invaluable.

After analyzing the client’s finances, cash flow, work and income history, this professional can run “what-if" and tax impacted scenarios on settlement proposals. In this way, a settlement can be specifically structured to the client’s present and future after tax financial needs.

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I have written a lot on this blog, about the fact that New York does not have a “No Fault” grounds for divorce. What that means is that in New York, in order to obtain a divorce, a party has to allege and prove grounds in order to obtain a divorce.

So, what are the grounds for divorce in New York  Domestic Relations Law §170 sets forth the six grounds for divorce. Of the six grounds, four are fault based. This means meaning that one of the spouses has done something wrong. The four fault based grounds for divorce are:

1. The cruel and inhuman 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.
2. The abandonment of the plaintiff by the defendant for a period of one or more years.
3. The confinement of the defendant in prison for a period of three or more consecutive years after the marriage of plaintiff and defendant.
4. The commission of an act of adultery.

Perhaps the most common fault based ground for divorce is “constructive abandonment.” A constructive abandonment occurs when one spouse refuses to have sexual relations with the other, without excuse or justification, for a period of one year preceding the filing of the action for divorce.

The two non-fault grounds are based upon a separation of, at least, one year, pursuant to a judgment of separation or written separation agreement. It is important to note that a separation in the absence of a judgment or an agreement executed with the required formalities will not be a basis for a divorce.

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

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

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

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

 The results of the study can be found here.

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

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

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

The New York Legal Update wrote this about the decision:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Last year, The Wall Street Journal found:

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

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

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

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

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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.

In the end, both parties have to  reasonable.    Failing that, you will be enriching your attorney.

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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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             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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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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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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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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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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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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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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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. 

Continue Reading...

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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. 

          A common fraud ground involves a misrepresentation concerning the desire to have children. Prior to the marriage, one party, for example the husband, represents to his future wife that he wants to have children, knowing that it is important to the wife to have children. Then, after the marriage, the husband despite having represented to his prospective wife his desire to procreate refuses to have children.   Since the wife would not have entered the marriage but for the husband’s misrepresentation, the marriage was procured by fraud. Therefore, the marriage can be annulled.

          A party seeking an annulment can seek all of the remedies available to a party in an action for divorce, including maintenance, equitable distribution, child and child support.

                   

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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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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. 

In the end, in deciding to contest a divorce on the merits, you must answer the fundamental question, do you want to continue a martial relationship, with someone who does not want to be with you.   A successful defense of an action for divorce, does not rekindle the marital flam

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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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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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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."

"But the pain of talking about the vicious sparring was too much for 13-year-old Daniel Manche, who asked to drop out of the counseling - and to stop seeing his dad, his mother Dawn Manche testified yesterday.

Daniel, who plays Tarzan as a young boy in the Disney musical, is at the center of a nasty custody battle being fought by his divorced parents in Manhattan Supreme Court."

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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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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