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

Mildred Loving,, who successfully challenged Virginia’s law that barred inter-racial marriage died this week. In the landmark case Loving v. Virginia, the United States Supreme Court unanimously struck down Virginia’s miscegenation law as it violated the equal protection clause of the Constitution.

Mrs. Loving’s obituary in the New York Times presents a haunting account of her case, her life and the cruel effects of the miscegenation laws:

By their own widely reported accounts, Mrs. Loving and her husband, Richard, were in bed in their modest house in Central Point in the early morning of July 11, 1958, five weeks after their wedding, when the county sheriff and two deputies, acting on an anonymous tip, burst into their bedroom and shined flashlights in their eyes. A threatening voice demanded, “Who is this woman you’re sleeping with?”

Mrs. Loving answered, “I’m his wife.”

Mr. Loving pointed to the couple’s marriage certificate hung on the bedroom wall. The sheriff responded, “That’s no good here.”
The certificate was from Washington, D.C., and under Virginia law, a marriage between people of different races performed outside Virginia was as invalid as one done in Virginia. At the time, it was one of 16 states that barred marriages between races.

After Mr. Loving spent a night in jail and his wife several more, the couple pleaded guilty to violating the Virginia law, the Racial Integrity Act. Under a plea bargain, their one-year prison sentences were suspended on the condition that they leave Virginia and not return together or at the same time for 25 years.

Judge Leon M. Bazile, in language Chief Justice Warren would recall, said that if God had meant for whites and blacks to mix, he would have not placed them on different continents. Judge Bazile reminded the defendants that “as long as you live you will be known as a felon.”

They paid court fees of $36.29 each, moved to Washington and had three children. They returned home occasionally, never together. But times were tough financially, and the Lovings missed family, friends and their easy country lifestyle in the rolling Virginia hills.

By 1963, Mrs. Loving could stand the ostracism no longer. Inspired by the civil rights movement and its march on Washington, she wrote Attorney General Robert F. Kennedy and asked for help. He wrote her back, and referred her to the American Civil Liberties Union.

The A.C.L.U. took the case. Its lawyers, Bernard S. Cohen and Philip J. Hirschkop, faced an immediate problem: the Lovings had pleaded guilty and had no right to appeal. So they asked Judge Bazile to set aside his original verdict. When he refused, they appealed. The Virginia Supreme Court of Appeals upheld the lower court, and the case went to the United States Supreme Court.

Mr. Cohen recounted telling Mr. Loving about various legal theories applying to the case. Mr. Loving replied, “Mr. Cohen, tell the court I love my wife, and it is just unfair that I can’t live with her in Virginia.”

Mildred Delores Jeter’s family had lived in Caroline County, Va., for generations, as had the family of Richard Perry Loving. The area was known for friendly relations between races, even though marriages were forbidden. Many people were visibly of mixed race, with Ebony magazine reporting in 1967 that black “youngsters easily passed for white in neighboring towns.”

Mildred’s mother was part Rappahannock Indian, and her father was part Cherokee. She preferred to think of herself as Indian rather than black.

Mildred and Richard began spending time together when he was a rugged-looking 17 and she was a skinny 11-year-old known as Bean. He attended an all-white high school for a year, and she reached 11th grade at an all-black school.

When Mildred became pregnant at 18, they decided to do what was elsewhere deemed the right thing and get married. They both said their initial motive was not to challenge Virginia law.

“We have thought about other people,” Mr. Loving said in an interview with Life magazine in 1966, “but we are not doing it just because somebody had to do it and we wanted to be the ones. We are doing it for us.”

In his classic study of segregation, “An American Dilemma,” Gunnar Myrdal wrote that “the whole system of segregation and discrimination is designed to prevent eventual inbreeding of the races.”

But miscegenation laws struck deeper than other segregation acts, and the theory behind them leads to chaos in other facets of law. This is because they make any affected marriage void from its inception. Thus, all children are illegitimate; spouses have no inheritance rights; and heirs cannot receive death benefits.

“When any society says that I cannot marry a certain person, that society has cut off a segment of my freedom,” the Rev. Dr. Martin Luther King Jr. said in 1958.

Virginia’s law had been on the books since 1662, adopted a year after Maryland enacted the first such statute. At one time or another, 38 states had miscegenation laws. State and federal courts consistently upheld the prohibitions, until 1948, when the California Supreme Court overturned California’s law.

Though the Supreme Court’s 1967 decision in the Loving case struck down miscegenation laws, Southern states were sometimes slow to change their constitutions; Alabama became the last state to do so, in 2000.

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A second appellate court went out of its way to implicitly recognize the legitimacy of same sex marriage in New York.

I previously discussed the case of Funderburke v. State of New York in which the claim of an employee of the Uniondale school district who sought health benefits for his same-sex partner was dismissed. The basis of the dismissal was that New York, at the time, did not recognize same sex marriage. The parties were validly married in Canada.

Since that time, as I have posted, New York courts began to recognize the validity of same sex marriages. In addition, the state has changed its position “regarding recognition of foreign same-sex marriages. The DCS now requires public employers within its jurisdiction to provide full spousal benefits to same-sex couples validly married in another jurisdiction, and requires all members of its health insurance program, including the District, to provide such benefits.”

Since there was no longer a dispute as to the validity of the marriage or the same sex partner’s right to health benefits, the appeal was moot. Nevertheless, the Appellate Division vacated the lower court’s order so as it prevent it “from spawning any legal consequences or precedent."

In doing so, the Appellate Court, went out of its way to remove any obstacles to the continued recognition of same sex marriages in New York. Thus far, two of the four Appellate Divisions have recognized same sex marriage

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Stating the obvious (and arising to the level of  “who pays for these studies”), a study found that: “A happy marriage is good for your blood pressure, but a stressed one can be worse than being single.”

Study volunteers wore devices that recorded their blood pressure at random times over 24 hours. Married participants also filled out questionnaires about their marriage.

Analysis found that the more marital satisfaction and adjustment spouses reported, the lower their average blood pressure was over the 24 hours and during the daytime.

But spouses who scored low in marital satisfaction had higher average blood pressure than single people did. During the daytime, their average was about five points higher, entering a range that's considered a warning sign. (That result is for the top number in a blood pressure reading).

If  “marital unhappiness” raises blood pressure to borderline unhealthy levels, I don’t think we need a study to learn that the stress of divorce raises blood pressure to levels that are off the charts.

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In the past weeks, I have commented on the two recent court decisions regarding same sex marriage and same sex divorce divorce. I just saw a funny television commercial for the Broadway show, November regarding these very issues.

In ad, the President (Nathan Lane) is asked by his aide for his view on gay marriage. He answers:

Gays should be allowed to marry, but not to divorce . . . therefore gaining new liberty and all the suffering that comes from knowing that there is no way out.

The (ad #2) can be viewed here

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A New York appeals court unanimously ruled that a gay couple's marriage in Canada should be recognized in New York.

As pointed out in the Sui Generis-a New York Law Blog, at issue in Martinez v. County of Monroe was whether Monroe Community College properly denied health care benefits to the female partner of a female student. The MCC student had previously married her partner in Canada.

The New York Legal Update fills in some more of the relevant facts:

On July 5, 2004, the plaintiff Patricia Martinez married her same-sex partner, Lisa Ann Golden, in the Province of Ontario, Canada. Ms. Martinez was an employee of the defendant Monroe Community College, in Rochester. On the basis of that marriage, Ms. Martinez applied to the college two days later on July 7, 2004 for spousal health care benefits for Golden. The College admittedly provided health care benefits for the opposite-sex spouses of its employees. However, on November 24, 2004, the College's Director of Human Resources denied the plaintiff's application for spousal health care benefits.

The plaintiff then commenced an action seeking, among other things, a declaration that the College's failure to recognize her marriage for purposes of her spousal health care benefits application violated her rights under the Equal Protection Clause of the New York State Constitution and Executive Law § 296,

In deciding the couple’s rights to insurance coverage, the Court had to decide whether the parties were legally married.   The Court then provided a review of  the test of recognizing the validity of marriages obtained outside of New York:

For well over a century, New York has recognized marriages solemnized outside of New York unless they fall into two categories of exception: (1) marriage, the recognition of which is prohibited by the "positive law" of New York and (2) marriages involving incest or polygamy, both of which fall within the prohibitions of "natural law"  . . .

Thus, if a marriage is valid in the place where it was entered, "it is to be recognized as such in the courts of this State, unless contrary to the prohibitions of natural law or the express prohibitions of a statute"

The Court then pointed out that by applying the "marriage-recognition" rule, New York has recognized a marriages which would have not been valid if solemnized in New York.

We conclude that plaintiff's marriage does not fall within either of the two exceptions to the marriage-recognition rA]bsentA]bsent any New York statute expressing clearly the Legislature's intent to regulate within this State marriages domiciliariesdomiciliariesso Van Voorhis, 86 NY at 37). The Legislature has not enacted legislation to prohibit the recognition of same-sex marriages validly entered into outside of New York, and we thus conclude that the positive law exceptiVoorhishe general rule of foreign marriage recognition is not applicable in this case. .  .

The natural law exception also is not applicable. That exception has generally been limited to marriages involving polygamy or incest or marriages "offensive to the public sense of morality to a degree regarded generally with abhorrence" (May, 305 NY at 493), and that cannot be said here. . . . .

The Court of Appeals noted that the Legislature may enact legislation recognizing same-sex marriages and, in our view, the Court of Appeals thereby indicated that the recognition of plaintiff's marriage is not against the public policy of New York. It is also worth noting that, unlike the overwhelming majority of states, New York has not chosen, pursuant to the federal Defense of Marriage Act (28 USC § 1738C), to enact legislation denying full faith and credit to same-sex marriages validly solemnized in another state.

The Court concluded that the plaintiff’s marriage to Golden, which was valid in the Province of Ontario, Canada, would be entitled to recognition in New York. The Court concluded that absent express legislation to the contrary, prohibiting the recognition of same-sex marriages, such marriages would be entitled to recognition in New York.

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

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

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

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

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

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

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This is primarily a blog about New York divorce. In it, I have repeatedly written about people fighting over engagement rings or engaged in their epic divorce struggles.  

For a change, on a hot summer day, I though I would acknowledge a touching and romantic piece from  The New York Times  on the loss of a wedding ring. 

I have worn my wedding ring every single day since my wedding more than seven years ago. I had never misplaced it before. But there I was staring at my bare finger. I noticed the indentation left by the ring, like a phantom band, and the skin tone of this narrow groove, a shade paler than the rest. I felt guilty, as though I had committed an act of infidelity. I imagined my wife’s quiet disappointment; there is nothing in the world quite like it. My hand grew heavy.

I offer this  op-ed piece as momentary diversion from the divorce battles and to re-affirm why it is we marry.

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In order to permit a victim of domestic violence to relocate to a safe location unknown to his/her abuser, a new law has been enacted in New York to permit a person who has obtained an order of protection to also obtain an order permitting him/her to terminate his/her residential apartment lease. This new law would allow the victim to move to a safe location and free him/her of any future financial obligation to the landlord.

In order to terminate the lease, the victim must show that:

• There remains a substantial risk of harm if the victim remains in the present residence;
• The risk could be substantially reduced be the relocation;
• The landlord refused to voluntarily consent to the lease termination; and
• The victim is acting in good faith.

This is an important measure to protect the most vulnerable victims of domestic abuse. It is not enough to simply give a victim of domestic violence an order of protection if the abuser knows where the victim lives; too often, orders of protection are violated. Victims would constantly feel the need to “look over his/her shoulder”  unless they can get a fresh start away from their abusers. 

Since the lease termination order requires a judicial approval, it is unlikely to be abused. The landlord’s inconvenience and expense of re-letting an apartment, palls in comparison to the need to provide a safe home to a battered person.

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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 engagement ring cases keep coming.

In the latest reported engagement ring case, Dreznick v Lenchner, the loving couple resided together in New York when they became engaged to be wed. A year and a half later, the woman ended the engagement and moved from the man’s residence with an engagement ring, a dog, and other items of personal property allegedly belonging to the man.  The jilted man demanded the return of the ring and other property and the woman, who had moved to California, refused. The man commenced suit and the woman sought to have the action dismissed, claiming a New York court lacked personal jurisdiction over her.

In a rather curious ruling, the Appellate Division found that personal jurisdiction was obtained on the cause of action for the return of the engagement ring under CPLR 302(b). That section grants a New York court  personal jurisdiction over non-residents and non-domiciliaries in "matrimonial actions."

  As Thomas Swartz questions, since the parties were never married, how could CPLR 302(b) apply?
The Court  did not elaborate.  Perhaps, deliberately so, hoping that the "just" result would not be questioned. After all, this woman just did not want to return the ring.   She lost at the trial court level and appealed.  (It must have been some ring for them to spend that much money fighting about it.)

It is interesting that the appellate court took such an expansive view of the term matrimonial action. 
I wonder if the court will take such an expansive view when it is confronted with a break up of a same sex relationship.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

There are few statistics regarding domestic violence against men.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

7) Will there be a television in the bedroom?

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

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

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

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

12) What does my family do that annoys you?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

In dismissing the case, the Judge stated:

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

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