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.
http://www.divorcenewyorkstyle.com/
Tuesday, December 14, 2010
Thursday, November 4, 2010
DIAL "M" FOR MORASS
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:
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?
www.divorcenewyorkstyle.com
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?
www.divorcenewyorkstyle.com
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?
http://www.divorcenewyorkstyle.com/
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?
http://www.divorcenewyorkstyle.com/
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
http://www.divorcenewyorkstyle.com/
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
http://www.divorcenewyorkstyle.com/
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
http://www.divorcenewyorkstyle.com/
http://www.divorcenewyorkstyle.com/
Wednesday, June 23, 2010
DIVORCE NEW YORK STYLE: A HARD DAY'S MONTH
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)
http://www.divorcenewyorkstyle.net/
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)
http://www.divorcenewyorkstyle.net/
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.
http://www.divorcenewyorkstyle.net/
http://www.divorcenewyorkstyle.net/
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