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Effective October 9, 2009, Section 177 of the domestic relations law is REPEALED and a new section 255 is added to read as follows: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

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

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.