Tuesday, December 14, 2010

DivorceNewYorkStyle: 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.


Thursday, November 4, 2010


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?


Thursday, August 19, 2010

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

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?


Monday, August 16, 2010

News: No Fault Divorce and Other New Laws

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


Wednesday, August 4, 2010

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

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


Wednesday, June 23, 2010


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)


Wednesday, May 26, 2010

News: Appellate Division First Department Adds New Rules

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.


Wednesday, May 5, 2010

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

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


Tuesday, April 20, 2010


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.


Thursday, March 11, 2010

Days in Confusion: The Appellate Court Says What?

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".


Sunday, February 21, 2010


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.


Wednesday, February 10, 2010

Divorce New York Style: A BLIZZARD OF ID

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.


Sunday, January 24, 2010



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.


Sunday, January 3, 2010


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.