"Divorce New York Style" by Lee Rosenberg

DivorceNewYorkStyle: "When Is An Order Not An Order: The Enforceability of 'Automatic Orders' Under the DRL and Uniform Rules" (Part 1)

2012-01-18T18:01:00.000-05:00

DivorceNewYorkStyle: "Matrimonial Represenation and Same-Gender Newlyweds-To-Be"

2011-12-28T10:15:00.000-05:00

NEARLY BORN ON THE 4TH OF JULY: Same-Sex Marriage Passes in NY

2011-06-26T20:49:00.000-04:00

June 26, 2011

NEARLY BORN ON THE 4TH OF JULY

We stand at an historic point in time where traditional notions of “marriage” have changed in the State of New York. We are the largest State to have enacted same-sex marriage legislation and by virtue of our proximity to other States which have enacted similar laws, this renovation of thought and acceptance has the ability to “procreate”. Same-sex couples may now marry and claim their entitlement to their unalienable rights to “life, liberty and the pursuit of happiness” just as is provided in that most venerated of Declarations signed on July 4, 1776.

I have previously written and lectured on this issue. (See i.e.- “Same-Sex Marriage: Right to Divorce, But Not To Marry?", New York Law Journal, March 2008). Where New York was recognizing out-of-state same-sex marriages, it created not only a basic inequity to our own citizens, but in essence a farcical one. Those whose foreign same-sex marriages were recognized here, could then be divorced here. I then wrote that if one takes the position that marriage was the more “noble” state of being, and same sex-couples married out of state could legally divorce here, they must be afforded the ability to marry here and avail themselves of all which the more noble state of marriage provides.

The enactment of the “Marriage Equality Act” – approved by the full Legislature on Friday night and signed by the Governor shortly thereafter– provides equality to all on one hand and protects religious freedom on the other. We have then demonstrated the greatness of our system where, in essence, the rights of two minorities are protected and the whole is enhanced. Moreover, the right thing has been done.

In changing his thought process after running on an anti-same-sex marriage position, Republican Senator Mark Grisanti spoke his heart and mind stating: “I would not respect myself if I didn’t do the research, have an open mind, and make a decision — an informed decision — based on the information before me. A man can be wiser today than yesterday, but there will be no respect for that man if he’s failed in his duty to do the work. I cannot legally come up with an argument against same-sex marriage. Who am I to say that someone does not have the same rights that I have with my wife, who I love, or to have the 1300+ rights that I share with her? […] I cannot deny that right and opportunity for someone, nor stand in the way for them to obtain the rights that I have. […] I cannot deny a person, a human being, a taxpayer, a worker, people in my district and across this state — the state of New York — and those people who make this the great state it is, the same rights that I have with my wife.”

As we readily approach another 4th of July, we understand that both “separate and equal” and “separate, but not quite equal”– are wrong. So for those who spoke their minds honestly and to those who now have the same right to share their lives as wedded couples, we should all be proud.

www.divorcenewyorkstyle.com

DivorceNewYorkStyle: THE OF IMPORTANCE OF BEING CHARLIE

2011-03-09T16:17:00.001-05:00

THE OF IMPORTANCE OF BEING CHARLIE

Let me start by getting it all out of my system-- WINNING!!

That felt good. My tiger blood and napalm searing brain is charged up!

FASTBALL!: Charlie Sheen's warlockian battles and rants have hit the airwaves, twitter world, and lexicon. That being said, his child custody issues, both with his present wife and ex- wife, have been profoundly affected by his media blitz. While present spouse Brooke Mueller, and ex, Denise Richards, have had their drug issues (Mueller) and sexcapades (Richards), respectively, in the public eye, Mr. Sheen's behavior has overshadowed all. What then has this done to his parenting rights, particularly as his sons with Ms. Mueller were very openly broadcast being removed from his home even while Ms. Mueller was going in and out of rehab?

As of the writing of this post, Mr. Sheen is not in rehab, not in jail, and I believe not presently charged with any crime. Until he was suspended from “Two And A Half Men”- in what appears to be a hypocritical money grab; he was (even after his many publicized issues with women and drugs) the highest paid actor on the highest rated network TV show, consistently rewarded for his performance. To the contrary, Ms. Mueller, who had supposedly just gone on vacation with Sheen and at least one of his “goddesses”, is reportedly in a day treatment facility for addiction and has had her mother flown in to assist with the children.

Should the rantings of someone who has been a successful emoter for most of his life provide such shock, given his history and the behavior of many such public figures who parade themselves in front of the tabloid media, reality TV, and otherwise? Can children be raised in such environs without suffering? Given the extent to which "normalcy" is attenuated in these “celebrity” cases, the issue of what is a "normal" upbringing to society at large and to judges who hear there cases, is challenged. A different standard then emerges. Even so, it would appear that Mr. Sheen as a father, has an uphill battle against his present substance challenged wife who had the children removed from Mr. Sheen's home on an "ex parte" (without advance notice) application and has not seen the children since as a result.

This post in essence is, then, not really about Charlie Sheen, but about the still existing general perception that women are more suitable custodial parents than men.

A real-life, but unfortunately typical recent example:

Father has, what used to be called “visitation”, now “parenting time”, under a court order resulting from an agreement. Father is later married, has two other children, lives out in the suburbs, and is a career professional. He agrees to travel every other weekend to pick up his son from the mother who lives three counties away. She repeatedly fails to provide the child to him and after he makes several petitions to the court, she counters by claiming the six year old child is afraid of him and that he hits the child. She takes the child to school where “coincidentally”, in front of school officials the child begins yelling in words or substance, “Don’t make me go to my daddy, he hits me, I am afraid.’ The Father is nowhere around, the child was returned the day before after having a pleasant weekend with the Father, his wife, and the child’s two young half-siblings. As a result of this incident, the Mother takes the child to a doctor—not the child’s regular pediatrician—who says bruises on the child “may” have been caused by the Father based on what the “child” told him. Child Protective Serves gets involved to investigate, but not before the Mother files an ex parte application to the court on these allegations, and has the Father’s parenting time suspended. After two months, the CPS report comes back finding they do not believe the child, and that school officials have been telling the Mother for two years that she should have the child in therapy, but she has refused. The judge tells the parties that the suspension is lifted and that it does not appear that parenting time should have been suspended in the first place. The court also tells the Mother that parenting time is to re-commence immediately. That does not occur.

The Child is withheld for another two months and the Father’s violation petitions are not heard by the court. Another application is brought by the Father for contempt and a change in custody. The Mother changes lawyers but is told by a new judge that the order is in place for the Father’s parenting time. That directive is ignored. The next court date, the court is informed that there has been non-compliance and that it is now four months that the Father has not seen the Child and vice versa. The “child’s attorney” says they need therapeutic visitation to repair the relationship between the Father and the child who says he is “afraid”. The six year old refers to the Father by his first name. It is demanded that this behavior not be tolerated; that the six year old doesn’t get to determine when he goes to the Father; that the Mother needs to be read the riot act; that the Father should have each and every full weekend with the Child to make up for lost time until the next court date which is a month away—even if the Child is kicking and screaming. This is the Mother’s doing.

The court states that it believes the Mother is simply refusing to comply with the court’s order. The result: the court modifies the order so that the Father gets the child every weekend until the next court date, BUT—not for his regular Friday to Sunday time. Every Saturday from 10 a.m. to 6 p.m.—in effect, less time that he is entitled to and over objection. If the situation was reversed and the Father was not giving the Mother her allocated time or was not paying child support (which he still is), would this behavior been met with such a light touch and less time? And has the “child centric” view of the world, where six year olds get to determine what they and the adults are required to do, gone haywire?

WINNING???

I don’t think so.

Author’s note: If Charlie Sheen or any of the other persons referenced herein have comment on my opinion, I can be reached at the gnarly galaxy known as the blog address set forth. Go down past the trolls and make a left at the Adonis DNA stand.

http://www.divorcenewyorkstyle.com/

DivorceNewYorkStyle: The State of Dis-Union

2010-12-14T11:27:00.000-05:00

THE STATE OF DIS-UNION

As another year draws to a close, I thought I would take a brief look back and see how far we have come/receded. Also, a look into the cloudy crystal ball to take a peek at where we may be going. After a year of sweeping legislative changes, on-going battles over same-sex marriage, some odd decisions out of our appellate courts, and the ratcheting up of litigation, I see more of the same for 2011. “Why”, you ask? Let us explore...

As I discussed in my last post, the interim spousal support bill which became effective on all cases commenced on or after October 12, 2010, remains a mess. We will not have a clue where this will go until motion after motion is filed, decided and appealed– and maybe not even then. There may be some attempt to amend the statute, but given a new Legislature and a new Governor– combined with the same old politics...

There was also a child support modification law which went into effect on matters commenced on or after October 13, 2010. It adds two additional grounds for modifying child support orders/agreements unless the parties opt out: (1) the passage of three years since the order was entered, last modified, or adjusted; or (2) a 15 percent change in either party's income since the order was entered, last modified or adjusted provided that any reduction in income was involuntary and the party has made diligent attempts to secure employment commensurate with his or her education, ability and experience. Accordingly, unless there is an opt out of these new grounds, all agreements and orders affected will be subject to litigation every three years.

There is also talk about a same-sex marriage bill coming around again, but remember...same old politics.

As to our courts, there are some discussions about use of “non-judges” within the system to increasingly assist in rendering decisions and putting advance peremptory pressure on litigants (read: lawyers) to make fewer applications to the court. The predicted result: more stagnation and inconsistent/erroneous decision-making. How to solve the problem: (1) Eliminate wasteful/unnecessary conferences; (2) Have the courts issue timely decisions that have consequences; (3) Issue sanctions against those who are abusing the system when their applications are frivolous- there is a Court Rule in place which defines frivolous conduct– use it. This does not necessarily chill a litigant’s right to be heard, it only lets those who adopt a "scorched earth" approach understand that if their motion is not meritorious, they will pay a heavy price.

The inconsistency of our trial and appellate decisions is something which will never be eliminated, simply because judges are still individuals and individual opinions vary. But, while matrimonial courts are courts of “equity”, “result oriented” decision-making hurts the system and is a prime reason why the courts are all over the map and fail to provide clear guideposts for attorneys and clients to rely upon. The result: more litigation and unhappier parties.

Finally, as the economy continues to hyper-pressurize the daily lives of our citizens, emotions and stress will remain higher. This makes settlement more difficult for many to achieve and litigation, even in the face of mounting costs, more likely. The possible solution: realism; managing expectations based upon past history, in light of (a) the present reality while (b) keeping an eye on the future. Doing this makes for mature and long lasting results. The gauntlet can always be thrown, the trick is not to let the gauntlet throw you first. Having a true understanding of the totality of the issues is essential to making informed decisions. That goes for everyone– lawyers, clients, and judges. After all, what you don’t know, can hurt you a whole lot.

While I see more of the same for the upcoming year, going forward, there are potential solutions which will help a bad situation get better as opposed to worse. And so, in this season of lights, joy, and revelry, as my court appearance calendar runneth over, Happy Holidays to all.

http://www.divorcenewyorkstyle.com/

DIAL "M" FOR MORASS

2010-11-04T16:30:00.000-04:00

DivorceNewYorkStyle: DIAL "M" FOR MORASS

Last month, four new statutes went into effect: No Fault Divorce, Interim Maintenance, Counsel Fees, and Child Support Modification. With the same belated stroke of the Legislature's pen which finally permitted no fault divorce to be enacted, the Legislature (a) enacted a counsel fee statute which many (at least in the Second Department) considered unnecessary and perhaps less effective given existing case precedent; (b) enacted a child support modification statute which will be fodder more more litigation; (c) and enacted an interim spousal support statute that is so filled with absurdity, inconsistency, and conflict that lawyers, clients and courts (both on the trial and appellate level) will be sorting and slugging it out for years.

Instead of simply passing the simple no-fault legislation we desperately needed, the People of the State of New York and its over-burdened court system have been handed a hodgepodge of fecal matter which will make matrimonial litigation more costly and take longer to resolve. Let us all thank the New York State Legislature, Lobbyists with specialized agendas, and the Governor for their "gift" to the People.

Now, you say, aren't all these laws much better for the non-monied spouse-- generally thought to to be the Wife? Not necessarily. Although this is the expressed intent of the statutes, the practical result is that in many cases, the convoluted provisions, particularly of the maintenance law, will cause more litigation, more court time, more resentment, and more motion practice-- because the monied spouse will not be able to live with the result; because the statute itself is in conflict with other provisions of law; because application of the "factors" beyond straight percentages will be contested; because every motion for temporary spousal support will (and should) be met with a cross motion. By the way, there are no corresponding provisions in the Family Court, so none of this applies there. So what does all this mean? Let's get technical (sorry about that part).

For purposes of this posting I will only deal with the interim spousal support statute. Get ready for a headache.

Now-- the court must apply the statutory guidelines unless the parties' opt out in a properly compliant written agreement or if the court deems the guidelines to result in an "unjust or inappropriate finding". The guideline amount is determined in two parts:

(1) A mathematical calculation based upon income up to $500,000 of the payor's income; and

(2) A calculation on income over $500,000 after the mathematical calculation has first been made on income up to $500,000 based upon consideration of 19 factors set forth. The court must set forth the factors considered in its order. These are the same factors to be considered on deviation where the presumptive calculation is deemed “unjust or inappropriate".

The statute does not say that the percentages may be used on income over $500,000. It only says the factors are to be considered on income which exceeds the $500,000 cap. If the lowest calculation on income up to $500,000 results in a finding of $0.00, there shall be no award.

The Statutory Calculation Up to $500,000

"The court shall determine the guideline amount of temporary maintenance in accordance with the provisions of this paragraph after determining the income of the parties:

(1) Where the payor's income is up to and including the income cap ($500,000):

(a) the court shall subtract twenty percent of the income of the payee from thirty percent of the income up to the income cap of the payor.

(b) the court shall then multiply the sum of the payor's income up to and including the income cap and all of the payee's income by forty percent.

(c) the court shall subtract the income of the payee from the amount derived from clause (b) of this subparagraph.

(d) the guideline amount of temporary maintenance shall be the lower of the amounts determined by clauses (a) and (c) of this subparagraph; if the amount determined by clause (c) of this subparagraph is less than or equal to zero, the guideline amount shall be zero dollars."

FYI: A maintenance calculator and worksheet is currently available on the Office of Court Administration website in the “Divorce Resources” section under “Temporary Maintenance Tools”: www.http://www.courts.state.ny.us/divorce.

Confused yet? Here are some examples:

1.                       Payor                                       Payee

                          $150,000                                $20,000
                               x 30%                                    x 20%
                           $45,000                                    $4,000

                          a. $45,000-$4,000=$41,000

                          b. $150,000+$20,000=$170,000 x 40%=$68,000

                          c. $68,000-$20,000=$48,000

                          Support is presumptively $41,000

2.                       Payor                                           Payee

                         $150,000                                     $100,000
                              x 30%                                           x 20%
                           $45,000                                        $20,000

                          a. $45,000-$20,000=$25,000

                          b. $150,000+$100,000=250,000 x 40%=$100,000

                          c. $100,000-$100,000=$0

                         Support is presumptively $0.00

3.                      Payor                                               Payee

                         $25,000                                                $0
                            x 30%                                           x 20%
                           $7,500                                                 $0

                        a. $7,500-$0=$7,500

                        b. $25,000+$0.00=$25,000 x 40%=$10,000

                        c. $10,000-$0=$10,000

                        Support is presumptively $7,500

4.                     Payor                                                Payee

                        $500,000                                     $250,000
                             x 30%                                           x 20%
                        $150,000                                        $50,000

                     a. $150,000-$50,000=$100,000

                     b. $500,000+$250,000=$750,000 x 40%=$300,000

                     c. $300,000-$250,000=$50,000

                     Support is presumptively $50,000

5.                  Payor                                                      Payee

                     $750,000                                                 $20,000
                    ($500,000 USED)
                          x 30%                                                    x20%
                     $150,000                                                   $4,000

                     a. $150,000-$4,000=$146,000

                     b. $500,000+$20,000=$520,000 x 40%=$208,000

                     c. $208,000-$20,000=$188,000

                     Support is presumptively $146,000 on the payor’s income up to $500,000 plus a determination as to additional support on the $250,000 in income over the $500,000 guideline cap based upon 19 factors.

If the presumptive amount is deemed unjust or inappropriate by the court or there is income over $500,000, the following "factors" come into effect:

(i) the length of the marriage;

(ii) the substantial differences in the incomes of the parties;

(iii) the standard of living of the parties established during the marriage;

(iv) the age and health of the parties;

(v) the present and future earning capacity of the parties;

(vi) the need of one party to incur education or training expenses;

(vii) the wasteful dissipation of marital property;

(viii) the transfer or encumbrance made in contemplation of a matrimonial action without fair consideration;

(ix) the existence and duration of a pre-marital joint household or a pre-divorce separate household;

(x) acts by one party against another that have inhibited or continue to inhibit a party's earning capacity or ability to obtain meaningful employment. Such acts include but are not limited to acts of domestic violence as provided in section four hundred fifty-nine-a of the social services law;

(xi) the availability and cost of medical insurance for the parties;

(xii) the care of the children or stepchildren, disabled adult children or stepchildren, elderly parents or in-laws that has inhibited or continues to inhibit a party's earning capacity or ability to obtain meaningful employment;

(xiii) the inability of one party to obtain meaningful employment due to age or absence from the workforce;

(xiv) the need to pay for exceptional additional expenses for the child or children, including, but not limited to, schooling, day care and medical treatment;

(xv) the tax consequences to each party;

(xvi) marital property subject to distribution pursuant to subdivision five of this part;

(xvii) the reduced or lost earning capacity of the party seeking temporary maintenance as a result of having foregone or delayed education, training, employment or career opportunities during the marriage;

(xviii) the contributions and services of the party seeking temporary maintenance as a spouse, parent, wage earner and homemaker and to the career or career potential of the other party; and

(xix) any other factor which the court shall expressly find to be just and proper.

There is so much more to this, that, to the lay person (and to many lawyers and judges), their head may explode. I will not further bore you with more detail (too late, I know) except to say that this is not good. While the recipient of an interim award (particularly where the payor is a W-2 wage earner) will no doubt benefit from this new law, it does not factor in child support issues or payment of household expenses. Is the recipient supposed to pay for everything in the house from this money? Is the payor supposed to stop paying those bills? What about all the double counting of housing, child care, and medical insurance between this law and the child support law. How did the Legislature manage to give some bizarre consideration to premarital arrangements and adults, including in-laws? How did they factor in marital property when this is an interim provision and marital property has not yet been determined? Etcetera, etcetera, etcetera. I could go on...

We will not be able to figure this all out for at least a year or two when the appellate courts start hearing all of the appeals that will come from this. Of course, the Legislature could go back to the drawing board before that...or not. The bottom line is, this must be corrected quickly and before the deluge of motions, bad decisions and appeals. Unfortunately, I don't think this will be the case and it will be left to courts and lawyers to fix the unfixable. Is there a Tea Party in sight, or just more Mad Hatters?

www.divorcenewyorkstyle.com

DivorceNewYorkStyle: No-Fault(y) Towers- New York Ends the Need to Prove Grounds for Divorce

2010-08-19T21:48:00.003-04:00

No-Fault(y) Towers: New York Ends the Need to Prove Grounds for Divorce

Thankfully, the day has finally arrived where New York State has emerged from the dark ages of divorce law and joined the other 49 States by enacting no fault divorce. Finally, our citizens do not have to remain in marital purgatory simply because outdated law says they must.

A divorce case, and the relationship which underlies it, is fraught with angst, disagreement, turmoil and sometimes violence. The “Sturm and Drang” often reeks of pettiness, hatred, and disgust– all that remains of two people, once in love. It then spills beyond– to children who are affected for years to come as their formative and adult relationships are molded by the dysfunction of what they grew up to view as “normal”. What then has been the benefit of adding a battle over “grounds” to this mix, where the horrific and salacious details of a marriage’s demise is required to be set forth in writing and proven in a court of law, merely because one party decides to contest? The answer is “none”. Even where there was no “War of the Roses”, if statutory grounds for divorce did not exist or were tenuous, allegations needed to be conjured or embellished. A perjurious fiction often resulted. Did this aid society or the interests of justice? Of course not. Adding to the already acrimonious atmosphere surrounding the marriage’s destruction (economic dissolution, custody and parenting battles, support litigation, etc.) by mandating the pleading of marital fault, was archaic, inane, and counterproductive; throwing the proverbial gas on an already blazing inferno.

For far too long, the elimination of the fault ground mandate has been successfully fought by a disproportionately small, but powerful variety of institutions– clergy stepping over the demarcation between church and state; misguided advocates believing that fault protected disadvantaged women more than it chained them to remain with men who refused to let them go; legislators pandering to special interests in slavish devotion to re-election. Then there are the sincere– those who truly believe that no fault makes it “too easy” to be divorced; that the “sanctity of marriage” is paramount. While it is hard to argue with another’s belief system, questions must still be posed and answered. Isn’t an individual’s own determination of the state of their personal happiness, when it has no bearing, import or impact on their neighbor’s view of it, more important? Does being forced to remain in a state of perpetual disharmony, in full view of the children affected by it, venerate the marital institution and help to raise healthy children? Is requiring a spouse who cannot sustain grounds to “buy” their way out of the marriage by way of an otherwise onerous settlement an acceptable solution? Is it more honorable to leave a litigant with a choice between perjuring him or herself to gain a divorce on “sexual abandonment” grounds or be left bound to a loveless and damaged life ‘til death do they part?

As a matrimonial attorney of over 23 years, I can state unequivocally that the passage of no fault divorce is a welcome relief. Most of my brethren and sistren would say the same; the major bar associations were in favor of its passage. The flames of conflict in a contested matrimonial case have been fanned, stoked, and drenched with lighter fluid to the point that a Viking funeral pyre would be envious of its white-hot blaze. Let us all be thankful that one very large log has been removed from the fire.

Wait...did I forget to mention the counterclaim? Can't we bask in the glow just a little while longer?

http://www.divorcenewyorkstyle.com/

News: No Fault Divorce and Other New Laws

2010-08-16T10:39:00.000-04:00

Governor Signs No Fault Divorce Bill.

On August 14, 2010, Governor Paterson signed three bills into law affecting matrimonial practice effective 60 days hence and applicable to cases and proceedings thereafter commenced. New York, formerly the only remaining State not to have a form of no-fault, has now joined the rest of the Union. It provides for a new ground for divorce as follows:

"The relationship between husband and wife has broken down irretrievably for a period of at least six months, provided that one party has so stated under oath. No judgment of divorce shall be granted under
this subdivision unless and until the economic issues of equitable distribution of marital property, the payment or waiver of spousal support, the payment of child support, the payment of counsel and experts' fees and expenses as well as the custody and visitation with the infant children of the marriage have been resolved by the parties, or determined by the court and incorporated into the judgment of divorce."

In addition, there are two other laws which were enacted. They generally relate to (1) the establishment of a presumption for counsel fees to be awarded to the non-monied spouse; and (2) a formula for interim spousal support in a manner similar to the provisions of the Child Support guidelines. The latter law also adds domestic violence and parties living together before the marriage as factors in awarding post-divorce maintenance.

More details and analysis to come in the near future

http://www.divorcenewyorkstyle.com/

News: California Federal Court Overturns Ban on Same-Sex Marriage

2010-08-04T18:11:00.000-04:00

The Chief Judge of the Federal District Court in San Francisco, ruled that California's Proposition 8 was unconsitutional. Proposition 8, by 52% vote of the electorate, previously overturned the State Judiciary's ruling in favor of same-sex marriage. The Chief Judge immediately stayed his decision pending appeal. The link to the New York Times' story is at http://www.nytimes.com/2010/08/05/us/05prop.html?hp

http://www.divorcenewyorkstyle.com/

DIVORCE NEW YORK STYLE: A HARD DAY'S MONTH

2010-06-23T00:00:00.002-04:00

A Hard Day's Month

So you’ve been wondering where I’ve been; what happened to my posts; why there has been no Divorce New York Style bon mot since May 26? No, you say!!!!?????? I know you are just kidding. How, after all, could one go for nearly a month without being able to enjoy my scintillating prose-- filled as it is with family law updates, finely honed opinion, and blistering insights! OK—so we jest. There is actually much which has been happening and much to address.

First, I have just finished back to back trials. It is axiomatic that all one really wants (aside from complete and utter victory with all legal fees paid in full) is a fair shake at trial—the ability to conduct your case, put on your witnesses and evidence, and to do so in an atmosphere of professionalism. Well, let’s just say one out of two met those criteria.

Second, I have been hired to do a few appeals in the process. I am seeing some very bad decisions coming from some courts lately. One, which was referenced in Newsday has so many things wrong with it, I notated almost every page of the decision.

As you can see, I have been a busy boy; this, on top of the regular conduct of the practice of matrimonial law. I think that people are becoming more and more agitated—spouses, lawyers and judges alike. As the summer heats up, so do the emotions. I have yet another trial scheduled for July’s end on a case that should be settled. It probably will not. As I was deposing the wife, who has so far refused to produce any documents of consequence, or comply with a recent agreement, she was scribbling on a pad in front of her the word: “annoying”. It seems nothing short of a contempt application will get her attention, all because she will not do what she will have no choice but to do. We will, then, do it the hard way and get her attention.

In another matter, a very manipulating husband saw his post-settlement gambit to gain custody and reduce his child support, instead change his custodial status from joint with equal time to my client having sole custody and he having alternating weekends (he wasn’t seeing the children after all, but preferred spending the time with his “roommate”) and paying more child support. The ink on the second settlement was barely dry, when he tried a new ploy—filing for an order of protection on behalf of the children to try and get back at their mother. This is the same father who demanded that she and the children move out of the marital residence titled in his name alone because its sale was imminent. He then caused the closing to be cancelled so he could move in with his “roommate” rent free while a foreclosure action was commenced by the bank. We will have to do this the hard way with him too.

This refusal to do what is expected under the law is also underscored by a recent Nassau County decision, Lauren R. v Ted R. from June 8, 2010 where Justice Robert Ross sentenced the ex-wife to six weekends in jail for alienating the parties’ children from their father in a pattern of willful violation of the provisions of their settlement agreement and divorce decree. The ex-wife’s conduct, according to the court, involved a litany of heinous acts which included wrongfully accusing the father of inappropriate sexual conduct towards one of the parties’ daughters even after she was cautioned by Child Protective Services against making such ongoing unsupported claims. Is the result harsh? Yes. But, if one accepts the court’s findings as to the mother’s conduct, and the underlying agreement is clear and concise as to the prohibitions against such conduct, the court is left with no choice but to find a contempt and to enforce its orders. Gender is irrelevant. As a wise man one sang, “Don’t do the crime if you can’t do the time”. I guess Robert Blake scoffs at his old theme song—allegedly.

People are very angry with each other and it is playing out in our courts. More trials, more expenses. Sometimes the courts do not help. We still do not have no-fault divorce in this State, so that the hatred is ratcheted up by contested grounds. I have three cases in the office at present where grounds are being contested by one party. It makes things uglier. Fortunately, the New York State Senate on June 15, passed a no-fault divorce bill and we await the Assembly’s vote. I urge its passage and approval by the Governor. We are the only State in the Country which does not have no-fault divorce despite all of the studies and history which shows that it benefits all, including the children. Contact your local Assembly-person and tell them to pass the Hassell-Thompson/Bing bill which is Assembly Bill A09753 (same as Senate Bill S3890-A). It can be found at www.assembly.state.ny.us/leg and searching by the Bill number.

There have also been two very interesting Court of Appeals’ decisions. In one, Harold S. v Lillian S., 14 NY3d 431 (April 29, 2010) http://www.nycourts.gov/reporter/3dseries/2010/2010_03474.htm, the court reiterated the strict limitations on “egregious conduct” committed by a spouse which could affect the financial resolution of the case. In Harold S., the wife not only had multiple affairs, but had a child from one of the affairs and hid it from the husband, the truth of which was later discovered by the husband who has always believed the child to be his. The Court held that as before, unless such conduct is deemed to be so outrageous as to shock the conscience of the court, it will not be deemed “egregious”. As adultery is a designated ground for divorce, adultery without something much more, does not fall into that category. Lillian’s behavior did not meet that criterion. What is also significant here is that the Court seems also to have inferred that the rules of pre-trial discovery on grounds which were permitted in “upstate” New York (the Third and Fourth Departments) and prohibited downstate in the First and Second Departments, should by and large follow the downstate courts’ take. To what extent this inference will be followed in Rockland County and beyond, remains to be seen.

Next, in a five to two decision in Fields v Fields, 2010 NY Slip Op 04871 (June 10, 2010) http://www.nycourts.gov/reporter/3dseries/2010/2010_04871.htm, the Court in this author’s opinion turned the law on its head, holding that a Manhattan townhouse, owned separately by the husband with his mother, paid for out of separate funds, secured by mortgages in which the wife was not named, maintained by the use of rental income from the same properties, and in which the wife had next to nothing to do with, was deemed marital property subject to equitable distribution. The wife received 35% of its value. I am dumbfounded. So, apparently was Judge Robert Smith of the Court, who being joined by Judge Susan Read, issued a scathing dissent, which excoriated the majority decision. The dissent is worth reading at the very least for Judge Smith’s usual pinpoint analysis and clear understanding of the issues. The fact that he is also so completely and obviously correct only underscores the absurdity of the precedent created by the majority.

As promised, a lot has been going on. More litigation, less settlement. I leave you then with this: The fault lies not in our stars, but in ourselves. The witness may slink away. (You really must watch those “Odd Couple” reruns)

http://www.divorcenewyorkstyle.net/

News: Appellate Division First Department Adds New Rules

2010-05-26T18:23:00.000-04:00

Effective immediately, the Appellate Division First Department (covering appeals in New York and Bronx Counties) has added email and searchable (.pdf) filing requirements for briefs, appendices, and records on appeal. The amendments are in Rules 600.10 and 600.11 and are in addition to the existing bound paper documents which are already required.

http://www.divorcenewyorkstyle.net/

News: Court of Appeals Rules on Same-Sex Relationship Cases

2010-05-05T16:26:00.001-04:00

In two cases decided on May 4, 2010, Debra H. v Janice R. and Matter of H.M. v E.T., the State's highest court has issued pronouncements addressing same-sex relationships and their impact on children.

In Debra H,. the court found on narrow grounds that a child born after a Vermont civil union by artificial insemination of one of the parties is by "full faith and credit", entitled to be recognzied as the child of both parties. Accordingly, both "parents" have custodial standing, even where the child was not adopted by the non-biological party. The court declined to extend the ruling beyond custodial rights to recognition of same sex-marriages performed in other jurisdictions. Among other concurring opinions, Judge Smith stated that he would also have found that lesbian couples who have children by artificial insemination should both (except under extraordinary circumstances) have standing as "parents" under New York State Law. He suggests a departure from Matter of Alison D. v. Virginia M., 77 NY2d 651 (1991) in the definition of a "parent" under the circumstances referred to.

The link to Debra H. is as follows: http://www.nycourts.gov/reporter/3dseries/2010/2010_03755.htm

In Matter of H.M. v E.T., the court addressed whether or not the non-biological "parent" in a lesbian couple
who did not secondarily adopt the child could be deemed a "parent" for child support purposes. There was no civil union in this case. The biological mother (H.M.) was a Canadian citizen who sought a declaration of parentage as to her former partner who lived in New York. The court reversed the Appellate Division and found that jurisdiction was proper under the Uniform Interstate Family Support Act since it was "alleged" that E.T. was a "parent". The court did not determine that ultimate issue. Judge Smith again issued a separate concurring opinion taking the position that a child born of such a union is the child of both and the modification of Matter of Alison D. v. Virginia M.

The link to H.M. is as follows: http://www.nycourts.gov/reporter/3dseries/2010/2010_03756.htm

http://www.divorcenewyorkstyle.net/

Divorce New York Style: PET SEMINARY: THE RISE IN ANIMAL CUSTODY CLAIMS

2010-04-20T17:20:00.005-04:00

Pet Seminary: The Rise in Animal Custody Claims

For legal time immemorial, animals have been considered “chattel”– items of property and nothing more. This, notwithstanding the vaunted role some animals have had throughout history. Cats in ancient Egypt, the significance of elephants in fertility and luck in certain cultures, dogs in royal European portraits, noble Arabian steeds in the middle east, and of course the GEICO gecko. But under our laws, they are property. If you are a pet lover who considers Fido to be family, this all seems barbaric. Having a very handsome Pomeranian named Giorgio in my home, my wife and I count ourselves among those who consider him as family and nothing less– even when he leaves me a present that is neither wanted nor returnable. I guess it is the thought that counts. Given that more and more people feel this way about their dogs, and even cats (sorry for the shameless dig, cat people), the laws and court cases are starting to shift a little on this “chattel” thing.

Many years ago I was yelled at by a trial judge for bringing in an application for the court to decide temporary custody of a dog. He was incensed and said something about taking an automatic weapon up to the roof of the courthouse and unloading his frustration to the sky at having to have to read such an affront to his senses. While still technically property, some court have recognized that they are more and it is not unusual for divorcing couples to provide for “custody” rights upon separation. A recent New Jersey case saw a trial court reversed for referencing the family pet at issue as being akin to “furniture”. (See “Ex Couple’s Fight For Pug May Change Laws”, Today at msnbc.com, August 2, 2009, http://today.msnbc.msn.com/id/32240294/ns/today-today_pets/) In CRS v TKS, 192 Misc 2d 547 (Sup Court NY County 2002), the court addresses the husband’s attempt to stop the transfer of the parties’ Chocolate Lab as an improper advance distribution of property “no different than a sofa, home or bank account”. While acknowledging it as “chattel” and not addressing the more personal aspects of the Lab, the court noted that a financial value could be set at trial with a credit to the husband and awarded temporary “possession” to the wife. The Family Court Act at section 842 (i) has also been amended to permit orders of protection to be issued in favor of “companion animals”, so as to prevent a party from “intentionally injuring or killing, without justification, any companion animal the respondent knows to be owned, possessed, leased kept or held by the petitioner or a minor child residing in the household.”

Several other articles have also appeared nationwide on the issue of “pet custody”. (“Who Gets Custody of the Dog?” USA Today, May 28, 2008, http://www.usatoday.com/life/lifestyle/2008-05-27-dogs-divorce_N.htm; “Custody Battles Over Pets Look Like a Dogfight” by Jane Porter, The Hartford Courant, October 1, 2006; “Bones Of Contention: Custody of Family Pets” by Prof. Ann Hartwell Britton, Journal of the American Academy of Matrimonial Lawyers, August 8, 2006, http://www.aaml.org/tasks/sites/default/assets/File/docs/journal/Journal_vol_20-1-1_-_Custody_of_Family_Pets.pdf)

Given the law’s exiting structure (which must continue to define pets as property by clear legal precedent despite the public’s contrary view), what is one to do? As with most other issues, the answer is, come to an agreement. A written agreement which comports with the requirements of our Domestic Relations Law (or otherwise as a contract in a non-family law situation) will be binding- just as Wills which leave all or part of a deceased estate for the benefit on a pet, may properly stand up in court. The agreement should specify the pet(s) involved, the name, the breed, the license number if applicable and where the pet(s) will go. If more than one, are they being split between the parties? If there are children, will the pet(s) go back and forth with the children even if ownership s vested in one party? Will there be “joint custody”? Will one party have “visitation rights? How will the pet insurance and vet bills be paid if the parties are sharing rights?

These issues are being raised more and more frequently in our divorce courts even though the judges do not like dealing with them. As divorcing parties become more and more litigious (and they are) and our pets become viewed more and more as close and important family members (and they are), the level of emotional turmoil as well as tactical positioning is being ratcheted up. The court will hear arguments, but will curse each and every moment which is being spent litigating and not resolving these claims. Our courts will, however, have to recognize that pet custody can be to some as personal and volatile as a child custody case.

This may all still sound silly to some, especially the “old schoolers” who grew up leaving the dog tied up outside all day in good and bad weather (you know who you are). To them I have two scary words, “Cesar Milan”. For me, as I finish this blog and am packing up for the evening, all while anticipating the two trials I have next week, I say, “Giorgio, daddy’s coming home!” Did I mention how handsome he is...

Author's Note: Thanks to my law clerk, Michelle Spencer, for her research assistance on this post.

http://www.divorcenewyorkstyle.net/

Days in Confusion: The Appellate Court Says What?

2010-03-11T23:02:00.001-05:00

Thank heaven we get clear and concise decisions from our appellate courts which provide guidance to lawyers, clients and trial courts.This way, we have some understanding of exactly what the law is...Did I just say that? I must have had a momentary lapse. Don't get me wrong now, I know the drill. These cases are "fact driven" we are told. There are "no trends" they say. OK. I get it. The appellate court does not want to be pinned down. But, certainly where the basic facts are similar, the result on the law should be pretty close, right? WRONG!

So now, I just had an article published in the New York Law Journal on February 26, entitled "'Rodriguez' Offers Common Sense Revisiting Of Double Dipping". The gist of it is as follows: after messing up the law in several cases which addressed a principle previously established by many courts, to wit: where an income stream is converted into an asset and distributed, the income used was no longer also available for spousal support—it was classified as an impermissible "double dipping" or "double counting". The appellate division corrected its mess-up in Rodriguez v Rodriguez, AD3d , 2010 NY Slip Op 00944 (2d Dept. 2010). issued on February 9, 2010. Here was the rule as we knew it: If your property (let's say a business) has a value which is based upon its ability to produce income and your spouse gets a piece of it through equitable distribution, your spouse does not get to use the same income to claim support on. Still confusing? I know. It's a strange concept. Let's try this (it's tough not to talk in lawyer)... English Translation: If you own a business which is worth $1,000,000 based upon the fact that it earns $1,000,000 in income, and your spouse gets an award of $500,000 as his/her share, your spouse cannot also ask for spousal support/maintenance/alimony based on that $1,000,000 because he/she already got a piece of that income in the distribution of the business. You don't get it twice. Makes sense, yes. Of course it does..., but not so fast.

In two cases, however, the Second Department in Griggs v. Griggs, 44 AD3d 710 (2d Dept. 2007) and Groesbeck v. Groesbeck, 51 AD3d 722 (2d Dept 2008), the appellate court somehow forgot about the no double dipping rule and distributed the business value AND awarded spousal support on the same income stream. Then on February 9, the same court issued Rogriguez and righted the ship again, pointing out

Moreover, we agree with the defendant that the Supreme Court impermissibly engaged in the "double counting" of income in valuing his medical practice, which was equitably distributed as marital property, and in awarding maintenance to the plaintiff (Grunfeld v. Grunfeld, 94 NY2d at 702; Murphy v. Murphy, 6 AD3d 678, 679). The valuation of the defendant's business involved calculating the defendant's projected future excess earnings. Thus, in valuing and distributing the value of the defendant's business, the Supreme Court converted a certain amount of the defendant's projected future income stream into an asset. However, the Supreme Court also calculated the amount of maintenance to which the plaintiff was entitled based on the defendant's total income, which necessarily included the excess earnings produced by his business. This was error.

So, all is now again right with the world, yes? Not so fast. Less than 30 days later on March 9, the same appellate court decided Kerrigan v Kerrigan, AD3d , 2010 NY Slip Op 01929 (2nd Dept 2010) and said

The award of maintenance to the defendant in the sum of $1,500 per week for a period of five years was appropriate (see Kriftcher v Kriftcher, 59 AD3d 392, 393-394). The plaintiff's contention that the Supreme Court engaged in "double dipping" with respect to the award of maintenance is without merit, as the plaintiff's business constitutes a tangible, income-producing asset, rather than an intangible asset (see Keane v Keane, 8 NY3d 115, 119; Griggs v Griggs, 44 AD3d 710, 713). (emphasis added)

To paraphrase John McEnroe in his Wimbeldon screaming days, "You've Got To Be Kidding Me!!" You just got it right in Rodriguez! That was last month! You used Griggs again! Griggs was wrong, the no double dipping rule is not limited to intangible assets, it includes service businesses! The Court of Appeals said so in Keane v Keane! You're the same court! It's a double dip!!

At this point, before I soil my tennis whites, I leave you with this: we cannot have this confusion. There are now two classes of litigants, those who are lucky enough to have a court which understands the rule and those who will get creamed (or get an unfair windfall, depending on who is the business owner) by appearing before a court which is erroneously following Groesbeck, Griggs and Kerrigan. Hopefully, Kerrigan will be further appealed or reconsidered so we are all governed by the same rule. After all, even when we stand before the curtain of uncertainty which is extent whenever a court is deciding your fate, when the law says you are entitled to the rotisserie, you sould get the rotisserie. Getting the canned squid instead, is just plain insulting.

NOTE: If you didn't get the last part, watch a few old episodes of "The Odd Couple".

http://www.divorcenewyorkstyle.net/

THE NEVER DEPARTED

2010-02-21T22:39:00.001-05:00

For My Sister

For this post, I am taking a short break from commenting on the family law issues of the day- although I might tie a few things in the end. So here goes.

Last Monday, February 15, 2010, my sister Randi Rosenberg, passed away after living with stage four metastatic breast cancer. The funeral service was on Wednesday. She was 44. She has a five year old daughter, Alexandra Marais Rosenberg Purdue. The cancer blogosphere has been abuzz with the news, my sister having been a co-founder and past president of the Young Survival Coalition, as well as a founding member & inaugural advocacy co-chair at LiveSTRONG Young Adult Alliance for the Lance Armstrong Foundation. Randi was also the owner of her own business and an adjunct professor at the NYU School of Continuing and Professional Studies. Her influence is such that the YSC has established the Randi Rosenberg Young Women’s Leadership Fund. At LiveSTRONG, she was referred to as “a giant”. http://livestrongblog.org/2010/02/16/in-memory-of-randi/

A few thoughts from my eulogy which I hope will inspire in her name and honor her in perpetuity:

You are going to hear a lot about my sister this afternoon...the blogs are already teeming with thoughts, prayers and remembrances. But we are going to sing her praises here and now– lest one second has gone by without a reminder of Randi’s bravery, intellect and joie de vivre. While I might suffer from delusions of grandeur of my clear similarity to Randi in these traits, I really do know better– I can only dream of possessing half of her strength and character.

Of her bravery, I would say that while she comes before, after, and contemporaneously with others who have fought cancer, Randi, along with her band of sisters who formed the Young Survival Coalition, did more than fight– they took up arms. Randi took her own struggle and used it to advocate for those whose voices were not heard. She spoke; she wrote; she appeared on TV, radio and the internet. Moreover, she cajoled, informed, and confronted. Whether it was a doctor with an air of superiority about to have that air unceremoniously and forcibly sucked from his now deflated ego or a skeptical politician whose bloated self-interest was about to be used for research and funding for the good of others– Randi got things done.

Randi was, and remains, a force. A force of nature. A force to be reckoned with. A force majeure...

It is so hard to encapsulate a life such as Randi’s in such a short period of time. The inclination is to go on talking so that the words extend her life. But I know ultimately– at least for now that the words must end. The impact of her life, however, continues...

So now Randi goes to comfort and be comforted by our father who she loved so much and who loved her in kind. To rest without pain and to inspire us ever after. Randi was nothing less than a Superstar. And so when you look into the night sky and it is brighter that it used to be, it is because Randi made it so. That is what a Superstar does. She makes everything brighter and happier and more special– simply because she is. The Superstar rises and is ever-present even as the physical wanes. At the end of Randi’s physical life, five year old Alexandra said it best, “Good night mommy. If you are tired you can close your eyes now. Go to sleep”

That a child of five must now go on without a mother, especially one as strong and inspiring as hers, is tragic. That our own mother has to also go on without a child so young, is crushing. That the rest of us, including her partner, Matt, cannot fill the void left by a giant, leaves us numb and grasping desperately for explanation. Randi, though, would look only to find the positive. To take tragedy and seek hope. To take the blow and shrug it off. To take the enormous void and imbue it with joyous life. These are the lessons to be learned even as darkness falls– if we want to learn them. While my sister was suffering and others complained, she would challenge them, “Tell me three good things that happened to you today”, thus forcing them to find the good in life. The choice was always hers to make and she always made sure that her decisions counted– even in the end. She enriched the lives of others.

So for those in the midst of their own conflict and struggle– while the battle is joined and the fight is ongoing– take the challenge, look ahead, protect your children, find some hope, create your own destiny, make a difference.

http://www.divorcenewyorkstyle.net/

Divorce New York Style: A BLIZZARD OF ID

2010-02-10T18:27:00.001-05:00

A Blizzard of Id

Here in the Northeast most of us have been snowed in all day. The courts and our offices are closed, although as tireless (and masochistic) matrimonial attorneys, sadly we all have files home with us anyway as well as remote access to our office computers, and PDAs in hand. I know I can’t be the only one. So, after checking my email yet again, sending off my case updates, speaking with my partner and associate about tomorrow’s schedule and more snow (did I mention that I now have three cases on in the morning including a trial and one final “stip or appear” in the afternoon-there is no stip), I sat down to blog. Yes, my wife is displeased given that she thought she was going to enjoy an exclusive snow day with her husband.

Given my predilection for bad puns– the lowest form of wit so they say– I give you the snowy “Blizzard of Id” for you past comic strip fans. Why, you ask? Here is the long-winded answer.

I spent a good part of yesterday with a trial scheduled in a case which is simply infuriating for a variety of reasons, many of which I will not express. We spent hours trying to negotiate a settlement after I spent Super Bowl Sunday as well as parts of Monday and Tuesday doing final preparation. After emailing a proposal over the weekend, I heard nothing back, so on the prep went. Of course, a counterproposal came a mere hour before we were to be in court– supposedly we had a done deal or so I was informed. Hours of stipulation adjusting (five pages of handwritten addendum plus changes to my initial draft proposal) later, the husband, still trying to be difficult and one-up everyone to the bitter end (and who would not accept that the entire proceeding resulted from his behavior and non-compliance), would not sign off on the last item. So, at day’s end, it could be argued that we would have been better served trying the matter to conclusion than spending additional time, energy and counsel fees waiting for the husband’s inevitable balking and game-playing. We all wanted the matter to settle, the judge had been fed up at the last court appearance and had enough, but was hopeful when we told him we were working on a resolution. My client wanted it done as well. I fully believe the husband’s attorney also wished to end it. End, however, it did not. We are scheduled back again, weather permitting, with one issue remaining– at least for now. Will countless more hours be spent dragging this on? The answer is no.

Sigmund Freud defined the “Id” in part as follows: “It is the dark, inaccessible part of our personality, what little we know of it we have learnt from our study of the dream-work and of the construction of neurotic symptoms, and most of this is of a negative character and can be described only as a contrast to the ego. We all approach the id with analogies: we call it a chaos, a cauldron full of seething excitations...”

In operating on the “pleasure principle”, i.e., people seek to satisfy biological and psychological needs, the game-playing husband in my example actually gets pleasure in dragging the case out and causing a greater sense of apprehension for the wife as well as her ever-mounting counsel fee bill. Resolution takes a back seat to the satisfaction of attrition. He takes pleasure in his own machinations thinking himself always the “smartest guy in the room”, even when he is not; “getting over” goes hand in hand with a successful negotiation. Unfortunately, with all of the expenses involved and the court’s repeated entreaties to settle this case– there is actually not a lot of money left at this point in time– he will go on unless stopped. This type of litigant is not, however, isolated to this one case nor gender specific. There are many out there with the same mentality, many of them who are “self-represented”, thus forcing their spouse to pay for counsel while they litigate for free and the court often feels hamstrung in the face of the unrepresented, for concern of not appearing fair.

Whether represented or unrepresented (pro se as we used to call it), the ideal of settlement is not always the best available result, although it should almost always be the first and best option. It is why we have courts and judges to make decisions. It is part of the lawyer’s job to be ready, able and willing to say enough is enough (with the client’s imprimatur of course). It is sometimes necessary to have the judge say"call your first witness" even when it make the judge less than happy. A real settlement might even immediately result, otherwise the court will simply render a decision. You would be amazed though at what often happens to the Id on cross-examination. Quite often the blizzard becomes nothing more than a short lived sputtering squall.

http://www.divorcenewyorkstyle.net/

INJUSTICE FOR ALL: THE ONGOING OFFENSIVENESS OF JUDGE JUDYISM

2010-01-24T20:51:00.001-05:00

INJUSTICE FOR ALL: THE ONGOING OFFENSIVENESS OF JUDGE JUDYISM

While getting ready to head into the office last week I had the misfortune of seeing the Biography Channel's bio on "Judge Judy". What should have been an example of the 1960s feminist struggle to rise in a male dominated field devolved quickly into the glorification of intemperance, intolerance and injudicious behavior. Of course I knew the end of the story going in, but watching it unfold where that behavior and rise in fame was rewarded and encouraged, was frankly revolting. While there were some voices of reason from the legal community interviewed who decried her insulting manner, the Judge Judy way of administering "justice" is lauded by too many as "tough but fair". My response: "Don't make me sick".

So why this post on "Judge Judy"? After all, it is just a TV show, mere "entertainment", another in a series of courtroom "reality" shows. Way too simple. We know that in many areas of life and in the entertainment world, boorish is not only acceptable, it is highly rated and prized for its ability to draw in the public-- like a car crash. I frankly don't care about that aspect of it. We all have our predilections and tastes, our “guilty pleasures”, if you will. (Yes, back in the day I might have watched the first few seasons of “The Real World”, and we do watch “Project Runway” in our house—naturally only when I have finished with the DVR of “Jeopardy” and the latest episodes of “Nova” and “Charlie Rose”). I am, however, of the "if you don't like it, change the channel" ilk. As an attorney, however, I am disgusted by the perception that what is spewed across the airwaves by Judge Judy is fair, just, acceptable or normal judicial behavior. For many of the public who regularly watch Judy Judy's antics and are amused by her or accept this drivel as typical, it shames my profession. It degrades the legal system. It falsely tells the public that this is ok and that she is a shining example of judicial conduct.

Most unfortunately, in the last few years I have seen in the real courtrooms of law too many Judy-like outbursts from some judges. Yelling; remarks designed to embarrass and humiliate; improper interference with the conduct of trials; general incivility; references on the bench to the lack of a judicial pay-raise, and the like. Perhaps Judge Judy’s rise to fame and fortune is a twisted inspiration to some or that society’s acceptance of this behavior has simply spread to a portion of the real judiciary. Judges are not alone in this. The conduct of some lawyers equals if not exceeds some of the judicial intemperance. Recently, for example, my office called an attorney to offer him the courtesy of advising him that we had the day before responded to his cross motion—which was jurisdictionally and procedurally defective by the way—and offered him time to respond even though we did not have to. His reaction was to rudely tell my paralegal and then me that we were basically annoying him and that he hadn’t seen our papers so he didn’t know if he wanted to respond. When we offered to fax an extra copy we were told he was leaving early so it didn’t matter and wouldn’t see them anyway so don’t bother—he’ll “see us in court” as it were. The next day in court he actually told the judge that we never served him and that we didn’t give him the courtesy of giving him an adjournment! Fortunately, I had briefed my associate about the conversation which took place the previous day and he recanted—sort of. He did so, however, without any shame.

The people who come into my office and the offices of other family law practitioners are often facing the most traumatic event or at least one of the most traumatic they have ever experienced. Most have never been in a courtroom before. They are uncertain of the future and where this chapter of their lives when closed, will land them. Do they deserve a Judge Judy? Do they deserve to have their dignity torn away? Even where a spouse engages in contemptuous action, does debasement do justice in place of clear, unequivocal sanction administered by a judge who commands respect through intellect and strength of judicial purpose? I think not.

There are too many good lawyers and good judges out there to have our profession sullied by these few, but loud “Judyish” exceptions to the rule. The public should know that the vast majority of judges (and lawyers) really care about what they are doing and the consequences of their actions. The court system has been clamping down far more than I can recall in the past on judges whose behavior does not meet the acceptable standards of judicial conduct. That should leave us going forward with a Bench which is legally, professionally and temperamentally ready, willing and able to do fairness and justice for all—again, the overwhelming majority of our sitting judges. For the very small minority who nevertheless wish to bully their way around the courtroom and tarnish the work of their brethren and sistren, maybe call NBC-- they need some help in prime time-- better to play a judge than be one. Either way...even Judge Judy will one day have her show cancelled—hopefully sooner rather than later.

http://www.divorcenewyorkstyle.net/

RECONCILABLE DIFFERENCES

2010-01-03T20:00:00.001-05:00

Divorce New York Style: Reconcilable Differences

For my first "missive" of 2010 I thought I would ruminate on the issue of custody litigation. A truly contested custody battle will cost tens of thousands of dollars if not into the six figures. That does not include the emotional and psychological turmoil that accompanies the financial costs. I have several of these going on at any given time and the level of hate which is generated is really difficult to put into words. Alright, I do like words anyway, so here are a few: deep, visceral, disgust, powerful, horrifying, exhausting, all-encompassing, depressive, vengeful, manipulative. Nothing good here so far. Thank heaven we have Mr. and Mrs. Charlie Sheen to show us the way. (OK, so that was a joke, perhaps not a good one, but sarcasm does have a point. Now for the more serious stuff.)

The law is “gender neutral” these days—at least as it reads. In practice, custody is still in many cases a woman’s claim to lose although in my experience, it has never been a better time for fathers seeking and receiving custody. There are shifting, and in many cases already shifted, views in this regard. This is particularly so as society’s (therefore judges’) positions on fathers’ involvement in child rearing have also evolved. As we have an ever-increasing amount of working mothers and two income families, parental responsibilities have shifted from the stereotypical “stay-at-home mom” to sharing and/or delineating parental roles in which mother and father each take on child rearing tasks. This makes establishing a clear “primary caretaker” harder to do in many instances.

Taking the custody component of a divorce case alone -- obtaining background information, conducting an investigation (which entails not only the legal costs, but also the services of a private investigator), preparation of applications for temporary custody/parenting time, the costs of an attorney for the child(ren), court appearances, preparing the client for hearings/trial, witness preparation, forensic custody evaluation costs, etc., -- mount quickly. If the matter proceeds all the way to a contested trial, there are potentially hundreds of hours of time expended in legal and legal related services. (This, of course, presumes that there are legitimate issues involved or in the unfortunate event the court permits baseless claims to be strung out over months and years. Certainly, if one party is making a meritless claim for custody and the court sees it as such, the process is much quicker and less costly.)

If the parties can come to an understanding, it is well established that not only are costs drastically reduced, but the parties and the children usually feel more at ease with the decision which better serves the children and their relationship with both parents. The parties are then looking at a far less financial expenditure to finalize an agreement and have it reduced to an order of the court, vis-a-vis the extreme costs referenced above. Moreover, those who can settle are doing less damage to their relationship going forward and less damage to their children.

I am not as “child centric” as some as it relates to the legal wrangling of custody litigation. I find that the pendulum has swung too far in the child advocacy direction in custody decision-making. Unless there is danger to a child where the protection of the child and asking the child for input is crucial to the determination, subjecting the child to lawyers, judges, forensics, etc., seems not only detrimental to a young child, but it puts the child squarely in the middle—the place where everyone always says the child should not be. Cutting through all of the p.c. talk and gibberish, everyone wants to know “which parent does the child want to be with”. The answer to that question may determine not only custody, but also child support, occupancy of the marital residence and it guides the litigation. At the same time, parents are jockeying for position; they are being told not to discuss the litigation with the child (even while having some discussion as to the process has got to be more helpful than being kept in complete darkness); children have their own lawyer in the process and as a result wield more power than they should—they are after all, children, and we all know they would never try and manipulate a situation at any given time. This problem is compounded by the fact that no one has the real answer as to what is best. Psychiatrist and psychologist opinions seem to change from decade to decade. For example, it used to be that overnight mid-week "visitation" was frowned upon as it was claimed to interupt the child's school year structure and parenting continuity; now it is favored. Views on "parental alienation" also appear all over the map depending upon the expert.

What is clear is that child custody litigation is an absolute mess, and unless you are sure there is a really good reason to litigate the issue to conclusion (and sometimes there are), take your child out of the middle, leave the hate and disgust for your spouse for other issues, and come to a fair, real life and practical resolution as adults and parents. Rest assured, there is plenty of time and money which we can still spend fighting for/against the business distribution or legitimate support issues or even trying to show the court what a dirt bag he/she is.

So, if you are a mother, don’t assume you have an automatic right to custody and that your husband will be relegated to seeing the children every other weekend. If you are a professional and are working 65 hours a week, think how exactly you are really going to have the time to be a full time residential custodian. If your spouse regularly has a glass of wine with dinner, don’t submit papers to the court alleging they are an alcoholic who can’t be trusted with the children. If you are starting another relationship with another man/woman/both, in the middle of your case and can’t seem to stop yourself, please keep it to yourself (at least until you can keep all their names straight and get your golf endorsements back). Everyone (including the Sheens) hopes 2010 will be a better year than 2009. Using some common sense and taking custody issues off the table is as good as any way to start. Happy New Year.

http://www.divorcenewyorkstyle.net/

News: Brazil Custody Case plus Madoff Victims' Divorce Agreement

2009-12-24T12:35:00.000-05:00

Brazil Custody Case Appears Ended

American, David Goldman boarded a private plane bound for the U.S. with his son Sean after years of court battling. Sean Goldman was turned over to his father by his Brazilian step-father in a scene of public turmoil instead of at the Consulate as requested. See NY Times article

Madoff Victims' Divorce Agreement Upheld

In Simkin v. Blank, decided in New York County on December 22, 2009, a New York Supreme Court Judge held that the husband's attempt to set aside the parties' 2006 settlement agreement due to a mutual "mistake of fact" as to the existence or non-existence of the Madoff account and "unjust enrichment", did not pass muster. Importantly, the court found, "The complaint does not contend, however, that the account had no value, only that, under the circumstances it was "non-existent". In urging that the Amended Complaint fails to state a viable cause of action, defendnat contends without contradiction that on September 1, 2004, and later, on June 27, 2006 when the parties entered into their agreement, and in fact, for the several years thereafter that plaintiff maintained this investment, it could have been redeemed for cash, presumably significantly in excess of its 2004 value."

The court then left open the possibility of a valid claim if the proper allegations were set forth in the complaint holding, "In the absence of a claim that, on the date of the parties' agreement the Madoff account had no value, the complaint fails to set forth a cause of action, either for mutual mistake or for unjust enrichment, as a matter of law."

See NY Law Journal for decision

News: Latest On Brazil Custody Case

2009-12-22T21:09:00.000-05:00

The Brazilian Supreme Court's Chief Judge lifted the stay which prevented Sean Goldman from returning to the U.S. in his father, David Goldman's custody. Further proceedings may, however, still result, including an appeal to Brazil's highest appellate court.

News Update

2009-12-17T18:45:00.001-05:00

Update: Brazil Supreme Court Stays Prior Custody Order in Goldman Case

A Brazilian Supreme Court Judge has stayed yesterday's order directing the return of David Goldman's 9 year old son, Sean to him within 48 hours. The child's step-father continues to petition to keep him in Brazil to permit the child to allegedly testify that he wants to stay. David Goldman had already flown to Brazil to pick up Sean when the ruling was issued. It is belived that a ruling on the issue will not be had until February since the court goes into recess on Friday. The child will remain in Brazil at least until a decision is made.

News

2009-12-17T12:09:00.001-05:00

Brazil Court Awards Custody to American Father-- For Now

American David Goldman, after a custody battle raging over many years to recover his son from the husband of his late ex-wife, was finally awarded the return of his now 9 year old son, Sean. A panel of Brazilian federal appeals court judges ruled on December 16, 2009 that Sean, should be returned to David Goldman at the U.S. Consulate in Rio de Janeiro within 48 hours. Notwithstanding the ruling, an appeal is expected which may further delay the child's return.

District of Columbia Begins Approval of Same-Sex Marriage

By an 11-to-2 vote, the D.C. City Council passed a measure on December 15, 2009 legalizing same-sex marriage. Many expect the bill to be passed into law by spring and the Mayor has indicated he will sign the bill into law. As in Califonia and Maine, which had legalized same-sex marriage only to have it overturned by vote of the populace, opponents have already promised to overturn the bill by referendum or through Congress, which has a month to review it when signed into law.

News: No Extra Change for 50 Cent Ex

2009-12-14T13:03:00.002-05:00

Citing to a case involving another prominent rapper, the Appellate Division in two decisions, determined that the ex-girlfriend of Curtis Jackson, better known as "50 Cent", was not entitled to even one cent more in child support or any counsel fees. Relying on Brim v Combs, a case in which Sean "P Diddy" Combs was sued for child support, the Appellate Division Second Department in Matter of Jackson v Tompkins, reiterated the principle that in high income cases, the court will look to the child's actual needs and the amount that is required for the child to live an appropriate lifestyle, rather than the wealth of one or both parties. Ms.Tompkins was seeking more money over and above the $6,700 in monthly child support ordered by the court as well as an award of counsel fees.

The decsions from September 15, 2009 may be found at:

http://www.nycourts.gov/reporter/3dseries/2009/2009_06550.htm and
http://www.nycourts.gov/reporter/3dseries/2009/2009_06551.htm

"INTO THE WOODS": A PRENUPTIAL LOVE/HATE STORY

2009-12-07T17:33:00.010-05:00

Get all of the Tiger Woods jokes out of your system. He has a mess on his hands for sure. It appears to get messier by the minute. It is really news which deserves to take up our (so it seems) every waking hour?? If one is to believe the reports, he has already amended his prenup to provide for more money now and more money later to his wife if she stays with him. Given, however, the generous helping of glamorous golfer girls being generated, his generosity may prove grimfully gratuitous. OK, not quite William Safire, but it will have to suffice.

If Mr. Woods has in fact amended the agreement and presumably it is done properly, he may very well have locked himself into a big pay day-- with his wife on her way out the door anyway in light of the additional alleged "revelations" of additional affairs. So what about the alleged amendment? Signed, (allegedly)with the expectation or hope that the wife will forgive his (one) indiscretion, by cashing a big check. After all, if it worked for Kobe...

Prenups are looked upon favorably in New York and are afforded great protection. A high burden remains upon the party seeking to set one aside. Courts like resolutions. While an "antenuptial", or prenuptial agreement may contain many of the elements of a separation or settlement agreement, it is, in many ways, a more complicated document. It may address estate rights, property rights, spousal support, custody and child support-with the latter three being subject to additional conditions of enforceability. (The court always maintains jurisdiction to address custody, parenting and child support provisions. Further, spousal support (what used to be called "alimony" and is now "maintenance") must not be "unconscionable". There is still though a quasi-fiduciary relationship between the betrothed to be. The court will look closely at the agreement if someone is challenging it at the time of a divorce and a proper showing is made that the agreement is suspect. In New York, there is now a three year statute of limitations to challenge the agreement which runs "essentially" from the time of commencement of a matrimonial action. The statute, Domestic Relations Law section 250, governs.

A whole host of issues are plentiful in the negotiation and preparation of a prenup and they are not always as simple as one might otherwise think. The goals remain to avoid future litigation in the event of a divorce, to protect the client in accordance with their desires, and not to get in the way of the wedding. That said, having a prenup is not always just for the wealthy or for people who have been divorced before. The idea, as I said, is to come to your own solution in the event of a matrimonial catastrophe. I tell clients its like having an insurance policy. In this case, it is to try and fashion some security beforehand in the event down the line, the marriage does not work out. You then put the document away in a dark place (literally-- and not the back of your mind-- hopefully that is not a dark place) and live your life in a happily married existence. (Yes, that is what I said-- "a happily married existence") Problems occur when a client comes to me the week of the wedding and say they want a prenup and have first told their intended that morning or if they don't want to disclose their financial information or if they want a completely one-sided agreement. Interestingly though, having it signed at the last minute or one party not having an attorney, does not make the agreement unenforceable, but it does raise issues and suspicions which must be overcome.

After inquiring as to the client’s desires and needs, full financial disclosure should be had. This helps eliminate someone being able to say they had no idea what was being given up or what the financial picture looked like. Both parties should have separate attorneys. Questions must be addressed: discuss the financial and life circumstances; are there children from a prior marriage they might want to protect; are there other estate concerns; are there obligations from a prior divorce; are they intending to have children; is one spouse going to leave the workforce for a period of time; do they want to condition distribution of property or support upon length of the marriage or establish complete waivers; do the parties have any property they already own jointly; is there an existing separate residence which one party will have exclusive occupancy of in the event of divorce; how do they want to deal with appreciation of separate property? There are often many other issues to be addressed as well.

The task of representing the client with regards to a prenuptial agreement is one which should be dealt with sensitively as well as professionally. A long happy marriage after all, is the goal. (Really, it is.) So for Tiger Woods, unless there is something really wrong with that alleged amendment, he (a) presumably has a valid agreement, (b) will have to shell out a lot more additional money than he had to before last week and (c) will have a hefty child support obligation if she leaves with custody. But, it will be a lot less then if there was no agreement and they will spend a lot less time in court battling over issues that they have already resolved. Who, after all, wants to spend time in court with lawyers, when you can be preserving your endorsement deals or discussing your new cheating spouse book on Oprah!

Note: Thanks to my friend Stu Cohen, for suggesting this topic since he felt one of my last blogs was "too technical" and "boring". I comment not though on his clear lack of ability to appreciate my prior scintillating posts. To paraphrase Ed Norton, "A pox on him and his ancestors!"

New York State Senate Votes Down Gay Marriage Bill

2009-12-02T15:07:00.002-05:00

By a margin of 38-24, the New York State Senate just voted down the proposed same-sex marriage bill after debating the issue on the floor.

News: Same-Sex Marriage in the Court of Appeals

2009-11-24T15:16:00.004-05:00

The Court of Appeals, in Godfrey v Spano 2009 NY Slip Op 08474 (November 19, 2009) had the issue of same-sex marriage before it some three years after it considered the landmark case Hernandez v Robles, 7 N.Y.3d 338 (2006). While affirming the right of a municipality to recognize extra-jurisdictional same-sex marriages for purposes of public employee health insurance and other benefits, the Court's majority declined to address the larger issue before it-- recognition of all such marriages for all purposes.

In Hernandez, a divided Court of Appeals affirmed the holding that the Domestic Relations Law limits marriage to opposite-sex couples and stated that it was up to the legislature and not the court to make the change. In subsequent appellate and trial court decisions [particularly including Martinez v County of Monroe, 50 AD3d 189 (4th Dept 2008) lv dismissed 10 NY3d 856 (2008)], the separate issue of full faith and credit and/or comity were deemed to be distinguishable from the Hernandez decision so that even if New York did not sanction same-sex marriage, it would be required under long standing constitutional principles, to recognize same-sex marriages which were performed in jurisdictions which did sanction those marriages. Such principles are such as those applied in the domestic relations sense to "common law" marriages.

Upon appeal to the Court of Appeals, the Court, with a concurring opinion by Judge Ciparick and joined by Chief Judge Lippman and Judge Jones, declined to extend their holding, stating,

"Because we can decide the cases before us on narrower grounds, we find it unnecessary to reach defendants' argument that New York's common law marriage recognition rule is a proper basis for the challenged recognition of out-of-state same-sex marriages. We end, by repeating what we said in Hernandez v Robles, expressing our hope that the Legislature will address this controversy; that it ‘will listen and decide as wisely as it can; and that those unhappy with the result — as many undoubtedly will be — will respect it as people in a democratic state should respect choices democratically made’"

The concurring opinion, however, went further and averred,

"Although I agree with the result reached by the majority, I write separately to set forth my view that the orders under review should be affirmed on the ground that same-sex marriages, valid where performed, are entitled to full legal recognition in New York under our State's longstanding marriage recognition rule. The issue is squarely presented in these appeals and plaintiffs' standing allegations are sufficient to allow us to reach it. The effect of the majority's rationale in affirming these orders will be to permit an unworkable pattern of conflicting executive and administrative directives promulgated pursuant to the individual discretion of each agency head. We ought to avoid the confusion that would arise from a same-sex couple being considered legally married by one agency for one purpose but not married by another agency for a different purpose."

While the High Court is certainly within its right to address the narrower issue, given the declination of leave to appeal in Martinez and the Legislature’s inability to even act upon a no fault divorce law, the same-sex marriage issue will most likely linger in a way that does ongoing disservice to time honored precepts of full faith and credit as well as comity. The Court’s inaction on this "elephant in the room" issue will only create more confusion and moreover give those opposed to same-sex marriage more room to hack away at constitutional bedrock. Even if one opposes same-sex marriage on "principle", we still must preserve the recognition of laws which are properly valid in other states and jurisdictions and it does not require legislative action to do so.
The decision in Godfrey mat be found at:
http://www.nycourts.gov/reporter/3dseries/2009/2009_08474.htm

News

2009-11-20T16:45:00.003-05:00

The Appellate Division Second Department issued a decision on November 17, 2009 in Davis v Davis, 2009 NY Slip Op 2009, which found that New York law does not recognize a cause of action for "social abandonment" as an extension of the abandonment ground for divorce. The decision which twice cites one of my New York Law Journal articles, "No Fault Divorce: New Twist on Constructive Abandonment" from March 2005 indicates that the "social abandonment" claim is too amorphous and falls into the "irreconcilable differences/no fault" type category which is not accepted in New York. The decision does, however, recognize the frustration with the lack of no fault grounds in New York and indicates that this case cannot provide the vehicle to accomplish that goal. The case may be found at: http://www.courts.state.ny.us/reporter/3dseries/2009/2009_08579.htm

More Than a Few Good Men (and Women)

2009-11-14T17:49:00.002-05:00

I know it’s been awhile since the last post– over a month in fact. Mea culpa. Things have been busy. Since the post of October 6, in addition to the usual slate of matrimonial cases, I organized the lecture for the Nassau County Matrimonial Committee’s October meeting, moderated the Matrimonial and Family Law Judicial Forum (in which I also wrote the seminar materials) and attended the annual meeting of the American Academy of Matrimonial Lawyers in Chicago– and boy are my arms tired. These last three experiences have given me great pause and are the fodder for an article which is in germination as we speak, but I will lay out a small jot (I know it’s redundant, thank you) of my thoughts here.

Believe it or not, I like what I do. I really do get to help people, at least I always try. That is not to say that things do not get ugly as I have mentioned in earlier posts. Most of my nights are restless, if not sleep deprived. A thought here, a worry there, a revelation or hopeful stroke of self-perceived (deluded?) genius sometimes within thought’s reach or not, keeps me tossing and turning. I know that I represent people who are often at their most fragile and that while their turmoil should not become my own, it is many times unavoidable. This does not mean that I cannot separate myself from becoming one with my client’s emotional plight– doing that is the worst thing a lawyer can do not only to his or herself, but also to the client. I tell clients from my initial consultation, that we cannot ride the emotional roller-coaster together; at least one of us needs to think with a clear head and it better be me. What it does mean, is that I am invested in trying to help put the pieces back together and that includes making a commitment to them, their case and their issues-- all coupled with honest assessment. All of these self-directed platitudes are not ego-strokes (really, they’re not– I swear), but to make the point that I am not the only one who feels this way about the practice of family law. In fact, not only do I like what I do, I also like (most) matrimonial attorneys.

Gathering together in a group or speaking individually, there is almost always a sense of caring and/or frustration. Caring about their client and their client’s situation; frustrated about the law and the system’s inability to cope and address their needs and predicaments in a timely and fair manner. There are great aspirations in what we do as men and women in the matrimonial bar. We try our hardest to fulfill them. It pains us when we cannot bring these cases to amicable resolution or if the litigation engenders a decision which we feel is unjust. I think of Gregory Peck in To Kill a Mockingbird or Spencer Tracy in Inherit the Wind. While we may not be able to articulate the kind of words or sentiments brought forth from the written page by these great performances, (and I can tell you that I give it my best shot every time) it is the ideal that most strive for on behalf of those who come to us for representation.

My trip to Chicago for the AAAL meeting served to reinforce what was already clear to me, but sharpened the focus even more so. If you are reading this as a person going through the turmoil of a divorce/family law situation, you should be heartened to know that there are many honest, caring and empathetic professionals out there who specialize in this area and who want to help– seek them out. If you are a matrimonial/family law attorney who fits the description in the last sentence, you know what I am talking about. The others should find something else to do; we all know who you are and you can’t handle the truth.

The 50% Solution?

2009-10-06T21:34:00.002-04:00

So, in my initial post I bemoaned some of the ills and incivility in the modern divorce case. I did, however, promise to offer some solutions. Well, with all due deference to Sir Arthur Conan Doyle (or in keeping with my film theme-- Basil Rathbone), here are some proposals to try and cut back on half the angst and turmoil.

1. Enact "no fault divorce". Most people are shocked to learn that New York does not have a true no fault divorce law. There is no provision for "irreconcilable differences" here. In fact we are the ONLY state that does not have one. Every time proposed legislation is created, it goes nowhere. Studies have shown that the enactment of such a law will cut down on unnecessary litigation in this area since grounds for divorce must be proven or the court will deny the divorce. This forces people to continue to be married where one of the parties refuses to understand or accept that the marriage is over.

2. Courts must enforce the law and grant sanctions and counsel fees where a litigant or their attorney engages in "frivolous conduct". That is conduct which is solely intended to delay, harass or prejudice the other or which has no true basis in fact or under the law.

3. There should be stricter educational guidelines for the practice of law in this field. Many attorneys who are adopting divorce law as a field of practice are doing so for economic reasons, particularly if their own field is suffering. This creates a group of attorneys who are not suitably educated in this area of law. The result is poor decision-making, poor advice, the perpetuation of unreasonable expectations, and an ultimately dissatisfied divorcing litigant who feels they got a "bad deal" and/or ripped off. They do not understand what is going wrong, why is it costing so much and why isn't it ending. Judges get frustrated and experienced practitioners are hamstrung trying to deal with someone who has no clue about the law but will not settle the case because they don't know any better.

I lectured for the NY State Bar Association yesterday and was surprised not only at the amount of attorneys practicing over 5 years who were veering into matrimonial practice for the first time, but also at the lack of knowledge as to some very basic matters. That they were attending the seminar, was at least somewhat heartening.

4. Better education for divorcing parents and children. In Nassau County we have the PEACE Program which tries to explain how parents' behavior affects them and their children. There is also a "Model Custody Part" which tries to address custody issues at the very beginning of the case. The American Academy of Matrimonial Lawyers, of which I am a member, also has materials to try and educate parents and children who are going through a custody battle. The American Bar Association has information as well. Fathers and mothers both have rights to their children. Having more information at their disposal can have a great settling effect and can go far in diffusing the conflict.

Just a few suggestions and food for thought. More to come...

New Legislation

2009-09-29T12:31:00.004-04:00

Here is some new legislation affecting Divorce Law in New York State:

AUTOMATIC ORDERS UNDER DRL §236 B(2)(b): EFFECTIVE SEPTEMBER 1, 2009

"(1) Neither party shall sell, transfer, encumber, conceal, assign, remove or in any way dispose of, without the consent of the other party in writing, or by order of the court, any property (including, but not limited to, real estate, personal property, cash accounts, stocks, mutual funds, bank accounts, cars and boats) individually or jointly held by the parties, except in the usual course of business, for customary and usual household expenses or for reasonable attorney's fees in connection with this action.
(2) Neither party shall transfer, encumber, assign, remove, withdraw or in any way dispose of any tax deferred funds, stocks or other assets held in any individual retirement accounts, 401K accounts, profit sharing plans, Keough accounts, or any other pension or retirement account, and the parties shall further refrain from applying for or requesting the payment of retirement benefits or annuity payments of any kind, without the consent of the other party in writing, or upon further order of the court.
(3) Neither party shall incur unreasonable debts hereafter, including, but not limited to further borrowing against any credit line secured by the family residence, further encumbrancing any assets, or unreasonably using credit cards or cash advances against credit cards, except in the usual course of business or for customary or usual household expenses, or for reasonable attorney's fees in connection with this action.
(4) Neither party shall cause the other party or the children of the marriage to be removed from any existing medical, hospital and dental insurance coverage, and each party shall maintain the existing medical, hospital and dental insurance coverage in full force and effect.
(5) Neither party shall change the beneficiaries of any existing life insurance policies, and each party shall maintain the existing life insurance, automobile insurance, homeowners and renters insurance policies in full force and effect."

Medical Insurance Coverage

Effective October 9, 2009, Section 177 of the domestic relations law is REPEALED and a new section 255 is added to read as follows:

§ 255. Prerequisites for judgments under articles nine, ten and eleven of this chapter; health care coverage.
A court, prior to signing a judgment of divorce or separation, or a judgment annulling a marriage or declaring the nullity of a void marriage, shall ensure that:
1. Both parties have been notified, at such time and by such means as the court shall determine, that once the judgment is signed, a party thereto may or may not be eligible to be covered under the other party's health insurance plan, depending on the terms of the plan. Provided, however, service upon the defendant, simultaneous with the service of the summons, of a notice indicating that once the judgment is signed, a party thereto may or may not be eligible to be covered under the other party's health insurance plan, depending on the terms of the plan, shall be deemed sufficient notice to a defaulting defendant.
2. If the parties have entered into a stipulation of settlement/agreement on or after the effective date of this section resolving all of the issues between the parties, such settlement/agreement entered into between the parties shall contain a provision relating to the health care coverage of each party; and that such provision shall either: (a) provide for the future coverage of each party, or (b) state that each party is aware that he or she will no longer be covered by the other party's health insurance plan and that each party shall be responsible for his or her own health insurance coverage, and may be entitled to purchase health insurance on his or her own through a COBRA option, if available. The requirements of this subdivision shall not be waived by either party or counsel and, in the event it is not complied with, the court shall require compliance and may grant a thirty day continuance to afford the parties an opportunity to procure their own health insurance coverage

“CHILD SUPPORT MODERNIZATION ACT”. INCREASES $80,000 CSSA BASIS TO $130,000. EFFECTIVE JANUARY 31, 2010:

Social Services Law 111-i:

2. (a) The commissioner shall publish annually in department regulations the revised self-support reserve as defined in section two hundred forty of the domestic relations law to reflect the annual updating of the poverty income guidelines amount for a single person as reported by the federal department of health and human services a child support standards chart. The child support standards chart shall include: (i) the revised poverty income guideline for a single person as reported by the federal department of health and human services; (ii) the revised self-support reserved as defined in section two hundred forty of the domestic relations law; (iii) the dollar amounts yielded through application of the child support percentage as defined in section two hundred forty of the domestic relations law and section four hundred thirteen of the family court act; and (iv) the combined parental income amount.

(b) The combined parental income amount to be reported in the child support standards chart and utilized in calculating orders of child support in accordance with subparagraph two of paragraph c) of subdivision one of section four hundred thirteen of the family court act and subparagraph two of paragraph c) of subdivision one-b of section two hundred forty of the domestic relations law shall be one hundred thirty thousand dollars; provided, however, beginning January thirty-first, two thousand twelve and every two years thereafter, the combined parental income amount shall increase by the product of the average annual percentage changes in the consumer price index for all urban consumers (CPIU) as published by the United States department of labor bureau of labor statistics for the two year period rounded to the nearest one thousand dollars. (Emphasis added)

c) The commissioner shall publish in department regulations a child support standards chart to reflect the dollar amounts yielded through application of the child support percentage as defined in section two hundred forty of the domestic relations law the child support standards chart on an annual basis by April first of each year and in no event later than forty-five days following publication of the annual poverty income guideline for a single person as reported by the federal department of health and human services."

I will continue to post important new legislation and case law in addition to my regular blog posts.

Firm News

2009-09-25T15:46:00.002-04:00

The appellate court in the firm's case, Friedman v Roman, 2009 NY Slip Op 06662 (2nd Dept 2009) just overturned the Supreme Court, Suffolk County's decision which erroneously struck our client's New Jersey post-nuptial agreement.
I will be lecturing for the NY State Bar Association on October 5, 2009 at the seminar: "Practical Skills: Basic Matrimonial Practice" in Melville, New York
On October 29, 2009, I will be moderating a panel of Supreme Court and Family Court judges discussing their views on various issues in matrimonial and family law for the National Business Institute in Plainview, New York. For details go to http://www.nbi-sems.com/Enbi/Brochurepdfs/49341.pdf

The Not So Good, the Bad and the Ugly

2009-09-24T21:34:00.003-04:00

Welcome to the initial post of my blog. What to call it? What to consider? What would be the initial subject? So, after some thought, we now have name and purpose and considering my 23 years of practicing matrimonial law, I decided to comment on the general state of things in my chosen field.

As the blog's name derives from film, so does the title of this first post. It unfortunately reflects what I see as an ever-increasing incivility, unwillingness to compromise, and anger among those divorcing in our courts. So what are the causes of this vitriol? A few observations...

1. Certainly, the economy is a contributor. People who might have separated earlier and who stay in purgatory longer because of the financial costs to divorce (both in litigation expenses and in asset division and support) are trapped in a cauldron-- a pressure cooker where an explosion must result as long as the cover remains tightly in place. If finances are tight in the first place, living in close quarters with someone who has cheated on you, doesn't talk to you, hates your guts and vice versa, or all of the above (add in-- while the children are crying too), does not usually make for an amicable resolution of the issues.

2. The failure to recognize or accept the reality of the new economic world when one spouse refuses to believe that a once opulent lifestyle is no more yet the sense of entitlement remains. Unrealistic expectations breeds resentment in addition to litigation.

3. To harken back to "The Doors", we want the world and we want it now. Failure to achieve the instant gratification which some feel is a birth right, makes for tension, frustration and anger when the process takes as long as it does or when the other party does not readily agree.

4. People are getting used to rudeness as an acceptable way of conducting life and business. It is rampant in everything from road rage to intolerant customer service representatives to reality TV. (Let the record reflect that I do not "blame" TV for society's ills or one's refusal to take responsibility for one's own behavior.)

5. This blight is compounded by some attorneys who march blindly into the abyss arm and arm with their deluded clients (sometimes the lawyer is more deluded than the client) and an overloaded court system in which many judges are new to this area of law.

6. New York does not have "no fault" divorce. We are the only state that does not. So "grounds" must be plead and proven, often by someone having to "embellish" (I am being kind here) the truth. That is a great way of setting the other spouse off even while counsel tries to explain to his or her client that the allegations against him of being a lowlife, vermin-like, disgusting excuse for a human being, are just "pleadings" not to be taken personally.

Alright then...that is a pretty good start. Hopefully, something good (it does exist) and some proposed solutions next time. Some law as well perhaps.