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
Thursday, December 24, 2009
Tuesday, December 22, 2009
News: Latest On Brazil Custody Case
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.
Thursday, December 17, 2009
News Update
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.
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
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.
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.
Monday, December 14, 2009
News: No Extra Change for 50 Cent Ex
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
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
Monday, December 7, 2009
"INTO THE WOODS": A PRENUPTIAL LOVE/HATE STORY
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!"
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!"
Wednesday, December 2, 2009
New York State Senate Votes Down Gay Marriage Bill
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.
Tuesday, November 24, 2009
News: Same-Sex Marriage in the Court of Appeals
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
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
Friday, November 20, 2009
News
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
Saturday, November 14, 2009
More Than a Few Good Men (and Women)
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.
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.
Tuesday, October 6, 2009
The 50% Solution?
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...
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...
Tuesday, September 29, 2009
New Legislation
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.
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.
Friday, September 25, 2009
Firm News
- 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
Thursday, September 24, 2009
The Not So Good, the Bad and the Ugly
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.
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.
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