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.