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

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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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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It was been an interesting week in family law practice, which I thought I note before taking a few days off with my family . 

In the same week Governor Paterson announced that he was introducing legislation to recognize same sex marriage, a couple decisions involving the custody rights of same sex marriages were announced.  

In the first, Debra H. v. Janice R., the Appellate Division, First Department, held that the same sex partner of a woman who gave birth did not have standing to assert parental rights after the parties broke up.   The Court ruled that although Debra H., the non biological parent,

 [S]erved as a loving and caring parental figure during the 2 ½ years of the child’s life, she never legally adopted the child. 

Based upon this reasoning, the court held that a party who is neither the biological nor the adoptive parent of a child lacks standing to seek custody or visitation rights under Domestic Relations Law §70.  

 In another case, a woman whose donated egg was implanted in her same-sex partner was permitted to adopt the resulting child. The parties were lawfully wed in Holland.  

  This case presented the novel issue whether a party, who was not legally married to the child’s mother at the time of conception, but who is genetically the mother can legally adopt the child. 

 In Matter of Sebastian, the Surrogate granted the petition, even though alternatives to adoption may have been available.   Two viable alternatives were obtaining an order of filiation or being listed as a parent on the child’s birth certificate. 

 The parties sought an adoption because they felt only an order of adoption would ensure that all the states and the federal government would recognize the adoptive mother as the child’s parent.  

 The Court specifically noted that

 Although it is true that an adoption should be unnecessary because Sebastian was born to parents who marriage was legally recognized in this state, the best interests of this child require a judgment that will ensure recognition of both Ingrid and Mona as his legal parents throughout the United States.

 These cases further highlight complex child custody issues faced by same sex couples in the absence of legally recognized marriage.

 

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One of the most recurring question I am asked  from people considering divorce is:" Am I responsible for my spouse's debts and liabilitie?"     Most recently, i  answered that very question, on Linked In.

Question- I'm about to break up with my wife. While we are separated I do not want to be responsible for debts she may incur. Will I be responsible for her debts?

Answer - You are really asking two distinct questions about debts. The first questions how debts will apportioned between you and your spouse as part of a divorce; the second question asks what is your responsibility for debts to your creditors.

All property acquired during the marriage may be equitably distributed. That means, both the assets and liabilities will be equitably divided between you and you wife. If your wife ran up credit card debt in anticipation of the divorce or wasted marital assets, that will addressed in the distribution of the remaining marital property.

Whatever agreement you and your wife reach about the responsibility for the marital debts, it is not binding on your creditors. Regardless of how you and your wife apportion the debts, your creditors can enforce their contracts against whoever is principally liable. If the obligation is in joint names, the creditor can attempt to collect from either or both of you.

So, for instance, if you have a joint credit card or your wife runs up debt on your charge card, even if your wife agrees to pay the debt for you, the credit card issuer could look to you to make payments.
 

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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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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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I read an interesting article in Sunday’s Times about how the credit crunch has resulted in more people borrowing money from their friends and families in order to purchase a home.   There is really nothing new about this phenomenon.   Parents have long gifted or loaned their children money for a home down-payment. 

 

There is also nothing new about the myriad of problems that arise when the parties divorce.  Since the down payment generally represents a significant portion of the marital assets, all involved, husband, wife and their parents, may claim the down payment to be theirs. 

 

The threshold question is –was the “advance” from the parents a gift or a loan?  If it was a gift, was it a gift to one or both of the parties?  

 

One of the parties may claim that the “advance” from his/her parents was a loan, which must be repaid when the marital home is sold.   In such case, inquiry must be made as to whether there was there a note or a mortgage?   Was there any documentation or acknowledgment of the loan?  Were there any loan payments made during the marriage? Was interest on the loan declared as income?     

 

In the absence of a writing or loan re-payments it may be hard to prove that the advance was a loan.   The fall back position is generally that the advance was a gift  to only one of the parties.  Assuming that the gift was made by check, the face of check should be determinative-(i.e., a check to Mr. and Mrs. Jones is a gift to both parties but a check to Mrs. Jones may be a gift to only the Wife).   

 

 Many lenders require a “gift letter” confirming that the down payment was a gift, not a loan.  This letter certainly may of value in determining purpose of the advance.  Likewise, did the gift trigger the filing of a gift tax return?   

 

In order to avoid future disputes, when the home purchase is made, there should be a writing, signed by all involved, clearly defining the terms of the transaction, identifying it as a loan or a gift, and, if it is a loan, setting forth the payment terms. 

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The other evening I had the pleasure of being on a panel to discuss the nuts and bolts of legal blogging at a continuing legal education seminar at the New York City Bar Association with three of the best bloggers out there: Kevin O’Keefe, Scott Greenfield, and Eric Turkowitz.

As Kevin noted in his blog, Real Lawyers Have Blogs:

We covered a lot of ground for the 50 plus in attendance. The program went 3 hours strong running from 6 to 9 PM. . .

We reviewed the basics of blogs, blog publishing platforms, better blogging practices, RSS and how to use it, the marketing of your blog, and little a social media.

Not missing a beat, one of the attendees, Andrew Barovick sent me a note that he blogged about a Cambodian couple who resolved their property settlement by literally dividing their marital home. In his blog, Doing Big Things, Barovick noted that

Half of the house remains on the original site, about 56 miles from Phnom Penh. The former husband has moved his half of the house off of the lot, to an undisclosed location. According to a local attorney, the splitting of the property does not constitute a legal divorce.

This is very reminiscent of the Taubs, who during the divorce, built a wall, divided their home in two and then barricaded themselves into their separate enclaves. I suppose this just proves that unique divorce solutions can be found worldwide.  These neat solutions  provide interesting fodder about which to blog.
 

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In this time of economic turmoil, I anticipate the divorce rate will increase.  When money is available to fund a comfortable lifestyle, spouses are more forgiving of minor transgressions. But, when there is less cash available, it is more difficult of overlook a spouse’s foibles and failings.

So, as the marriages begin to unravel, the inclination of some disreputable spouses may be to hide or stash away marital assets. Divorce 360.com offers some tips to Know When your Spouse is Hiding Cash. Some of most common methods of hiding money are:

 

• moving money from a joint account to an individual one;
• putting assets into a family trust, offshore corporation or shell corporation;
• buying collectibles or other items that retain value but are not liquid;  
• purchasing insurance policies, cashiers checks and savings bonds.
• investing in certificate "bearer" municipal bonds or Series EE Savings Bonds. (These do not appear on account statements because they are not registered with the IRS.) or 
• colluding with an employer to delay bonuses, stock options, or raises until a time when the asset or income would be considered separate property.

The article identifies some of the indicia that a spouse may be attempting to hid assets. Tell tale signs of wrong doing include:

 
1. Significant and unexplained changes in the value of assets.   Unexplained changes could be a signal that something untoward has happened.  

2. Does your spouse's income suddenly seem lower? Some individuals can manipulate how they take their income, for example, deferring income. 

 

3. If your spouse travels internationally he could have hidden foreign ban k accounts   

4. Are family members whom your spouse previously ignored now being lavished with gifts? Or has your spouse decided to suddenly invest in a family business venture?

 

The common sense best protection –  stay fully informed about the marital finances. 

 

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Equitably distributing pensions and retirement plans have become more expensive. According to the Divorce Law Journal, Fidelity and Charles Shwab are now imposing fees to process Qualified Domestic Relations Orders (“QDRO”).

A QDRO is a court order that recognizes the right of the ex - spouse to receive all or part of a pension plan that belonged to their ex – spouse.

The financial institutions can charge the processing fees so long as they are authorized by the retirement plan. Now, the parties not only have to negotiate the division of the pension and the cost of preparing the QDRO, but the expense of implementing the QDRO, as well

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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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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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A recent study discovered that 20% of divorcing couples tried to conceal assets or income from the spouse.

As reported in the Telegraph:

The study - by the accounting firm Grant Thornton, which surveyed 100 family lawyers - found that husbands were much more dishonest when a marriage crumbled.

In cases where assets had been hidden, 88 per cent involved men concealing wealth from their wives. Just two per cent involved women hiding assets. In the remainder of cases, both partners tried to conceal wealth from one another. . . .

"Men are seeing these huge settlements and they are terrified," she said. "If they think a marriage might break down, more and more men are panicking and trying to put their capital into trusts and offshore accounts or buy assets in a third party's name so that they are hidden from their wives.”

As a result of this trend, finding hidden assets as part is a divorce has become an important aspect of many divorce cases. 

And now for the shameless plug - I will be chairing a program aptly titled, Finding Hidden Assets- What Every Divorce Bankruptcy & Commercial Litigator Needs to Know at New York City Bar on April 24, 2008.

The distinguished facility of this program includes:

•  Fred Abrams, an attorney and author of the New York Asset Search Blog,
•  Lori Lapin Jones, a Chapter 7 Panel Trustee and a New York Law Journal columnist, and
•  Peter J. Theobald of Klein Liebman & Gressen, a computer forensic expert specializing in computer forensic examinations.

 It looks to be an eye-opening discussion about uncovering hidden assets.

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The Appellate Division answered a common question- what happens when one spouse uses marital assets to pay a separate obligation.

It is quite common for the parties to enter the marriage with existing  financial obligations, whether it be student loans, credit card debt or even an obligation to pay child support  or maintenance from a prior marriage. It would be the norm to pay these financial obligations from current income. The problem is that the separate debt is being paid with marital assets, the current income.

In the fascinating case of Johnson v. Chapin, the husband used martial assets for his separate obligation to pay support to his former spouse. The Appellate Division pointed out this scenario gave  his second wife’ the right to recoup her share of the marital property used to pay the husband’s separate debt.

There is ample authority for the proposition that contribution to the separate assets and liabilities of a former spouse may be recouped in an award of equitable distribution. For example, in Lewis v Lewis (6 AD3d 837 [2004]) the Third Department upheld an equitable distribution award which allowed a plaintiff to recoup 50% of payments made during the marriage to reduce mortgage indebtedness on a residence deemed to be the defendant's separate property. Citing numerous cases, the Court emphatically reaffirmed the settled principle that:

" marital funds should not be used to pay off separate liabilities' and, whenever that occurs, the inequity may be remedied by permitting the injured spouse to recoup his or her equitable share of the marital funds so used. . .

Similarly, in Dewell v Dewell (288 AD2d 252 [2001]), the Second Department held that the plaintiff was entitled to recoup 50% of marital funds used to reduce a deb incurred to obtain a medical license which, in the circumstances of that case, was found to constitute the defendant's separate property. Applying this authority, the court properly held that plaintiff was entitled to recoup 50% of marital funds used to meet the husband's separate legal obligations to his former wife.

What this means is that husbands need inventory their wives’ separate debt and wives need inventory their husbands’ separate debt. To the extent that either’s separate debt has been reduced or eliminated during the marriage, the other may make a claim to recoup his/her equitable share.

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When thinking of marital assets to be distributed during a divorce, litigants prepare for battle over homes, pensions and investment accounts. Unschooled or poorly advised litigants may overlook valuable assets.

For instance, what happens if one of the parties attends school or attains an educational degree during the marriage.

The Appellate Division re-affirmed the well settled rule of law that

an academic degree may constitute a marital asset subject to equitable distribution, even though the degree may not necessarily confer the legal right to engage in a particular profession. While the MBA degree might not actually be a prerequisite to the defendant's employment, the record demonstrates that the degree substantially increased her future earnings, and therefore the plaintiff is entitled to an equitable share of its value, with the proper valuation date being the commencement of this action.

In the recently decided case of Judge v. Judge, the wife “stopped working outside the home in order to take care of the parties' first child. She primarily stayed home and took care of the parties' children until the fall of 1993, when she enrolled in a program for a Masters of Business Administration degree (hereinafter an MBA degree) at a college where the plaintiff was employed as a professor. In the spring of 1994, the defendant was hired by the Federal Reserve Bank (hereinafter the FRB), through the college placement office, and she received her MBA degree in February 1997. The defendant's first job with the FRB was as a Management Information Analyst, and at the time of trial she was an officer at the FRB and vice-president of the FRB's Cash and Custody Division.”

The fact that the degree is an asset to be equitably distributed should not be in dispute. Generally, only the value of the degree is open for debate and is determined through the use of expert testimony. It is quite common for the court to appoint a single neutral evaluator to determine the value of a degree, license or enhanced earning capacity.

In the Judge case, based upon expert testimony at trial, the Court found that the value of MBA was $565,000 and find that the plaintiff was entitled to 25% thereof, for an award in the sum of $141,250.

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Your credit rating could be hurt by divorce. As part of divorce, you distribute not only your assets, but your debts and obligations as well.

An in-artfully drawn marital agreement may provide that one spouse will assume the liability for a joint debt. However, an agreement apportioning joint liability between you and your spouse is not binding on the creditor. The creditor can attempt to collect the debt from either or both parties. As pointed out in a Fox Business article, “The mistaken assumption that you're off the hook for financial obligations can result in a series of missed payments that may trash your credit score for years.”

A well written agreement would provide that the debt is fully paid or transferred into the name of the spouse who is going to be responsible for paying it.

The Fox article does provide some useful information about protecting your credit rating:.

Begin by converting your credit card accounts. People most often miss payments on this type of debt, rather than the loans that keep a roof over their head and wheels under their feet.

Next, work on refinancing your mortgage and your car loan. Granted, this is going to be more difficult, because the bank will want just one person to accept the loan in his or her name -- which may not be possible if that person's salary isn't enough to qualify for the loan. In cases like these, it might be easier to sell the car or the house, split the money and move on. That way, you're guaranteed not to have credit damages caused by a vengeful ex-spouse.

"Remember that when you're getting divorced from your spouse, you're also divorcing yourself from emotional attachment to assets," Ulzheimer said.
You would also be wise to opt out of receiving pre-screened offers for credit or insurance. A spiteful ex-wife or ex-husband may be tempted to apply for a loan in your name just to ruin your credit. Go to the consumer credit reporting industry's official Web site for details. Visit the Web site.

Finally, start planning for all this at least six months to a year before you file, or as early as possible before the divorce gets ugly. Once any problems begin, you and your embittered other half will have a hard time thinking logically. If this seems like a lot of work at the front end of your separation, remember that it will save you up to 10 years of credit-related headaches in the aftermath

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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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In a fascinating case, the Appellate Division, as a punishment, dismissed the appeal of a litigant who deliberately and continuously disobeyed court orders.

In the case Wechsler v. Wechsler, a husband was ordered to pay to his wife $22,770,623 as equitable distribution. The husband filed an appeal and refused to pay any part of the judgment, despite repeated court orders requiring his immediate compliance.

As a result of the husband’s willful disobedience of court orders, the husband was found to be in contempt of court. The court issued an arrest warrant and ordered the husband, who resided in Colorado,  to appear in Court. The husband, claiming ill health, disobeyed this order as well.

The Court applying the doctrine of fugitive disentitlement, dismissed the husband’s appeal of the underlying judgment.

"The fugitive disentitlement doctrine permits a court to dismiss an appeal if the party seeking relief is a fugitive while the matter is pending' (Degen v United States, 517 US 820, 824 [1996]; see Ortega-Rodriguez v United States, 507 US 234, 242 [1993]). The doctrine is based on the inherent power of courts to enforce their judgments (see Degen v United States, supra at 823), and it has long been recognized and applied to those who evade the law while simultaneously seeking its protection (see Bonahan v Nebraska, 125 US 692 [1887]; Smith v United States, 94 US 97 [1876])" (Matter of Skiff-Murray v Murray, 305 AD2d 751, 752 [2003]). The doctrine applies in civil cases provided there is a nexus between the appellant's fugitive status and the appellate proceedings (id. at 753). The nexus requirement is satisfied where the appellant's absence frustrates enforcement of the civil judgment (id.). The principal rationales for the doctrine include: (1) assuring the enforceability of any decision that may be rendered against the fugitive; (2) imposing a penalty for flouting the judicial process; (3) discouraging flights from justice and promoting the efficient operation of the courts; and (4) avoiding prejudice to the non-fugitive party (Empire Blue Cross & Blue Shield v Finkelstein, 111 F3d 278, 280 [2d Cir 1997]). . .


Here, appellant, having been adjudicated in contempt of court and made the subject of an arrest warrant, is a fugitive (see Skiff-Murray, supra; Finkelstein; supra). That appellant is a resident of Colorado is immaterial; he is wanted in New York pursuant to a warrant and refuses to return to this State. Furthermore, there is a nexus between appellant's fugitive status and the appellate proceedings. Appellant's fugitive status resulted from his failure to comply with an order enforcing the judgment of divorce requiring him to transfer to respondent substantial assets, and his refusal to return to New York. Indeed, appellant's counsel acknowledged to Supreme Court at the hearing on appellant's motion to reduce the amount of money he owed respondent that he did not appear in court as directed because he was afraid of being arrested and incarcerated pursuant to the warrant. Appellant's appeal is from the judgment of divorce, the underlying charter of his financial obligations to respondent, and all post-judgment proceedings before Supreme Court and this Court have revolved around that charter. Appellant's absence from the State owing to his fugitive status has, as evidenced by the multiple motions and applications made before both Supreme Court and this Court, frustrated respondent's enforcement of the judgment of divorce. Moreover, under these circumstances, the principal rationales for the doctrine — imposing a penalty for flouting the judicial process, discouraging flights from justice and promoting the efficient operation of the courts, and avoiding prejudice to the non-fugitive party — would be vindicated by dismissing the appeal.

At bottom, appellant has willfully remained outside of New York in order to avoid the jurisdiction and authority of the courts of this State (James, 27 AD2d at 814), and we will not afford him review of the judgment of divorce since he has evaded court mandates

In short, the Appellate Division simply had enough and held that it would not aid a litigant who flagrantly and deliberately disregarded its orders.

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Illegal conduct, like bribing the judge in your divorce case, may be considered as a factor in awarding equitable distribution. Domestic Relations Law §236(B)(5)(d) provides a laundry list of factors to be considered by a court in distributing marital property. The thirteenth factor is the catch-all “any other factor which the court shall expressly find to be just and proper.”

The New York Legal Update provides the background of the case of Levi v. Levi in which a husband’s attempt to bribe the matrimonial judge constituted egregious marital fault and was to be factored into the equitable distribution award.

The divorce action originally appeared before a certain Justice of the Supreme Court, Kings County. The action terminated abruptly after it was learned that the plaintiff-husband attempted to bribe the judge with a $10,000 payment for a favorable outcome.


When the divorce action appeared before a new judge, the new judge equitably distributed the marital residence entirely to the defendant-wife because the plaintiff-husband had attempted to bribe the judge. The Second Department affirmed the distribution finding that the new judge properly exercised its discretion in finding that the plaintiff's attempt to bribe the former judge constituted egregious marital fault to be factored into the equitable distribution award. The Second Department also rejected a claim by the plaintiff-husband that his conduct was not egregious because he was suffering from a mental disease or defect at the time he made the bribe.

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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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The Appellate Division in Mildy v. Mildy examined some of the factors considered in equitably distributing martial assets. In this case, the Court was confronted with the issues of equitably distributing the wife’s enhanced earning capacity and jointly held real property which was, in large part, paid for with the wife’s separate property.

The Wife earned a master's degree during the marriage.  Her enhanced earning capacity  was valued at $140,000. After trial the husband was awarded a half interest in the degree. The Appellate Court reduced the husband’s interest in the wife’s enhanced earning capacity to 25%, and provided the following reasoning:

While both parties agreed that they hired a babysitter to care for the child while the wife was in school, the husband testified that, although he continued to work full time while the wife was in school, he cared for the parties' child during the time when he was not working, relieved the wife of her household chores so that she could study, maintained the household, took the child to school and activities, and assisted the wife with her studies, as he had a similar background in special education. There was no evidence that the husband sacrificed any career opportunities during the time the wife was pursuing her degree. Under the circumstances of this case, we find that the husband's contributions did not warrant an award of 50% of the wife's enhanced earning capacity.

The parties purchased a vacation property in Florida in 1997 for the sum of $270,000, subject to a mortgage of $243,000. In 1998, the wife received $500,000 as a gift from her family, which was deposited in a joint account. The husband conceded that the money was her separate property. On February 2, 1998, the sum of $216,238.58 was withdrawn from the joint account to pay off the mortgage on the Florida property.

In equitably distributing the property, because the wife’s separate property contribution was traceable, the court granted the wife a credit equal to the $216,238.58 paid to satisfy the mortgage. The balance of the house proceeds were distributed equally between the parties.

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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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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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The New York Times featured a front page story on how computers, blackberries, cell phones and other electronic devices are being used to discover adulterous relationships and hidden assets.

The Mississippi Family Law Blog points out these electronic devises all leave a  trail which may be discovered during the course of litigation.

Folks need to understand that if you use a computer or a phone, you are leaving an electronic trail which can easily be followed. Once divorce proceedings begin, the discovery process can allow your spouse to discover e-mails and inspect computer hard drives. Just because you hit the delete button does not mean the data is gone. Many times it is easily recoverable.

But, before resorting to self-help cyber-sleuthing, it is imperative that you consult with an attorney, to ensure that you do not violate federal criminal law.  Stephen Worrall on the Georgia Family Law Blog has written extensively on this subject.

While the electronic crumbs left on a computer may evidence attempts to secrete assets, the Asset Search Blog details how money laundering schemes and other attempts to hide assets have been frustrated.

In short, in most cases, through due diligence and sheer bull doggedness, hidden assets will be discovered.

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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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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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Divorce, illness and a long term disability are the most common life events that have a catastrophic effect on a person’s financial well being.  All too frequently a person going through divorce watches as his/her credit rating is destroyed by the former spouse.

The  Ask the Advisor Blog has some great tips for protecting your credit after divorce.  Chief among his tips are:

1.Check Your Credit Score — By checking your credit score you can see if your credit has been adversely affected by your divorce. It will also show if there are any debts that you used to share with your spouse that are now being neglected. This will point you in the right direction when it comes time to cancel any joint accounts.

2.Separate/Cancel All Joint Accounts — Any and all accounts, debts and property that you still share should be separated, canceled or sold.

3.Notify Creditors of Your Divorce — Once you have separated/canceled all of your joint accounts/debts, you are no longer legally bound to your former spouse's current debts..

It is important to note that any agreement for the payment of debts between you and your spouse is not binding on your creditors. That means, until and unless the debt is transferred to the spouse that assumed the particular liability, the other spouse remains personally liable for the debt. So, if the debt is not transferred into your spouse’s name, it remains a joint obligation. If it is not paid, your remain liable to pay the debt.

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

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

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

David Sarnacki writes in Domestic Diversions that:

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

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

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

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

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

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

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The New York Times spotlights Justice Robert A. Ross, a matrimonial judge on Long Island. Justice Ross has apparently earned a reputation for enforcing court orders and judgments by holding recalcitrant litigants in contempt of court and imprisoning them.

Too often, when a party prevails in a divorce action, winning a judgment against their spouse, the victory is pyrrhic.   The “losing” spouse will not only refuse to honor the judgment, but will deliberately frustrate enforcement.   

Last February, the Matrimonial Commission, a task force convened by the New York State court system, issued a report that called, among other things, for stricter enforcement of divorce-court decrees. The report said that in two years of hearings around the state, dozens of the 100 or so witnesses told of waiting years for orders to be issued, only to find themselves waiting months and years more for them to be obeyed.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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There is much speculation on the web and in the blogs, for those who really care, that Britney Spears did not pick November 6 as the day to file for divorce from Kevin Federline by accident.

She filed two years and one month from the day of her marriage, on Oct. 6, 2004. Her prenup, according to legal theorists, evidently carried increases for Federline for every year of their marriage. And those deadlines, they say, likely had 30-day grace periods.

Hence, Nov. 6 would have been Britney's last chance to get out of paying a third year of alimony settlement to a basically talentless slacker who was a drain on her finances.

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

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

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

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

Look for a settlement, soon.

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

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

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

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

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

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

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

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

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

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

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

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

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

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Whenever playing a childhood game, the loser would inevitably call out as the game ended, “Do over.”  In golf, there are mulligans.  In the “game of divorce,” in most cases, there are no second chances to re-negotiate or litigate fairly negotiated and properly executed marital agreement.

The recently decided case of Kojovic v. Goldman, 2006 NY Slip Op 07595, makes this point abundantly clear. In Kojovic, the parties negotiated a post-nuptial agreement resolving all issues of equitable distribution and spousal maintenance. By the terms of the agreement, the wife was to receive a payment of $1.15 million dollars for her share of a closely held corporation in which the husband possessed a minority interest and was the chief executive officer. 

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

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

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

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

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

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

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

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

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

Excerpted below is the portion of the Appellate Division’s decision, which, perhaps, precipitated Dr. Bartha’s descent into madness, culminating in his violent suicide attempt Continue Reading...

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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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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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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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