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

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

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

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

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

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

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

2. Get into the spirit of the season.

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

3. Love means far more than money.
 

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

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

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

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

6. Celebrate with your children's other parent.

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

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

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

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

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I have returned from my vacation, schools back in session and summer is, for all accounts over. So, I am back to bloggging on a regular basis.

One of the most common post-divorce scenarios is that the custodial parent wishes to relocate and the move will negatively impact on the other parent’s relationship with the child. The Nassau County Family Court in the case Mr. G. v. Mrs. M (New York Law Journal, 8/28/07 (subscription required) provided a excellent primer on the subject and in doing so, denied a mother’s application to move with her child to Virginia.

As laid out in the leading case of Tropea v. Tropea, the issue is to be determined as is in the best interest in the child. In doing so, the Court is to consider the following criteria:

1.Each parent’s reason for either seeking or opposing the relocation;


2.the current state of the relationship between each parent and the child;

3.the impact that the relocation will have on the quality and of the child’s relationship with the non-custodial parent;

4.the emotional, economic and educational effects that the move will have on the child; and

5.the feasibility of maintaining the relationship between the child and non-custodial parent.

The trial court must weigh all of the factors and determine not what would be best for the parents but, rather, what is in the best interests of the child.

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Postings in two divorce and family law blogs highlight a growing conflict between the states on how to deal with a parties continuing obligation to pay alimony or maintenance, as it called in New York, if the former spouse enters into a domestic partnership.

To frame the issue, what happens if you are obligated to pay maintenance to your ex, but your ex rather than  re-marrying, enters into a domestic partnership? A number of states have enacted civil union or domestic partnership statutes which grant same sex couples some, but not all, of the rights and privileges of marriage. Maintenance or alimony typically terminates when the receiving spouse remarries.

The New Jersey Law Blog provides an excellent survey of the issue, contrasting a case from Virginia, which held as a result of the domestic partnership alimony should terminate, and one from Oregon, which held that the support obligation should continue.

The Florida Divorce Blog reports on a California decision in which the court ruled that a domestic partnership “is mere cohabitation and not a marriage.” Therefore, the alimony payments were ordered to continue.

To avoid uncertainty and litigation, this issue must be addressed in a settlement agreement at the time of divorce. If it is the parties’ intention that maintenance should terminate in the event of a cohabitation (same sex or opposite sex), the entry into marriage or a domestic partnership or civil union, the settlement agreement should make special provision. The failure to address t his issue exposes the parties to an unknown and presently unpredictable future determination.

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