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 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), 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), 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)