Divorce: New York

Divorce: New York

Pre-nup Upheld; Temporary Maintenance and Counsel Fees Increased on Appeal

Posted in Agreements and Stipulations, Temporary (Pendente Lite) Relief

In its August 19, 2015 decision in Hof v. Hof, the Second Department, almost matter-of-factly, addressed a number of pendente lite and pre-nuptial agreement issues.

To begin, the Court affirmed the determination of Suffolk County Supreme Court Justice John B. Collins, that after a hearing upheld the parties’ prenuptial agreement. By that agreement, at least in part, the parties had waived interests in each other’s pensions. Contrary to the wife’s contention, that mutual waiver was not unconscionable, and was not necessarily one-sided when it was made, as both parties had accumulated approximately three years in their respective pensions at that time. Moreover, the Court stated that the husband’s threat to cancel their wedding if the agreement was not signed did not establish duress.

The Second Department modified Justice Collins’ order insofar as it deviated from the presumptive temporary maintenance formula. Domestic Relations Law § 236(B)(5-a) sets forth formulas for the courts to apply to the parties’ reported income in order to determine the presumptively correct award of temporary maintenance.

Here, the Justice Collins had downwardly deviated from the presumptive award by awarding the wife the sum of only $1,500 per month in pendente lite maintenance. While a court may deviate from the presumptive award if that presumptive award is unjust or inappropriate, the Second Department here held, however, that it was not proper to so deviate. It was an insufficient basis to deviate that the husband “was maintaining the marital residence where he was living after the wife vacated the marital residence with the children, and the fact that the wife stayed home during a portion of the marriage to take care of the children.” Such did not render the presumptive award of pendente lite maintenance unjust or inappropriate. Accordingly, the Second Department held that it must modify the award of pendente lite maintenance to provide the wife with the presumptive award of $2,549.70 per month.

On the other hand, Justice Collins was not required to apply the Child Support Standards Act to determine the award of pendente lite child support. In that regard, any perceived inequity in the temporary child support award can best be remedied by a speedy trial, at which the parties’ financial circumstances can be fully explored.

Finally, the Second increased the interim award of counsel fees from $2,500 to $20,000, the full amount of counsel fees incurred by the wife to date related to the divorce issues. The husband was the monied spouse and, thus, there was a rebuttable presumption that the wife was entitled to an award of attorneys’ fees. At the time the wife moved for her award of attorneys’ fees, the attorneys’ fees she had already incurred amounted to approximately $25,000. Domestic Relations Law §237 does not provide for an award of counsel fees in actions to enforce or rescind prenuptial agreements, and approximately $5,000 of the $25,000 in fees that she actually incurred were attributable to challenging the prenuptial agreement. Therefore, at this juncture, the Second Department held the wife should be awarded interim attorneys’ fees in the sum of $20,000, rather than only $2,500.

Arnold B. Firestone, of Firestone & Breud, PLLC, of Commack, represented the wife. C. Donald Shlimbaum, of Shlimbaum & Shlimbaum, of Central Islip, represented the husband.

Co-parenting: Flexibility Cannot Be Ordered; Abusive E-mails Warrant Jail

Posted in Agreements and Stipulations, Custody and Visitation, Enforcement of Support and Orders

Sentencing a father (a police officer) to 15 days in jail for sending abusive e-mails to the mother, Supreme Court, Putnam County Justice Victor G. Grossman attempted to stop the war between divorcing parents.

Charging the parties with acting more like children, throwing tantrums, teasing and name-calling, Justice Grossman, in his decision in L.T. v. K.T.  noted that both parents behaved like preschoolers. Unfortunately, the Court could send the parties to their rooms. The parties’ three children have two parents whose embarrassing behavior has set a horrible example. the behavior of both parties was “all the more disappointing when one considers the parties should know better.” The father was a police officer, who had been trained to defuse difficult situations. The mother had a Master’s Degree in Psychology. Thankfully, the children had multiple outlets where they can see responsible adult behavior.

The Court also blamed the lawyers, observing “how counsel for each of the parties has personalized the conflict to the point where they are incapable of communicating effectively beyond a litigating posture, to promote their clients’ interests.”

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Oops! I Forgot To Submit A QDRO: Delays, Arrears, Loans and Options

Posted in Equitable Distribution

A belated qualified domestic relations order (QDRO) is not barred by the contract Statute of Limitations. It may also be used to collect arrears in the ex-spouse’s share of pension payments paid to the retiring employee before the post-retirement QDRO first goes into effect. Moreover, while the employee’s post-divorce loan against the pension will be charged only against the employee’s share, the reduction in monthly benefits attributable to the employee electing after the divorce joint and survivor benefits with the next spouse is to be shared with the first spouse.

So held the Appellate Division, Second Department, in last month’s decision in Krause v. Krause. In that decision the appellate court addressed for the first time the question of whether the submission for judicial approval of a proposed QDRO, instead of a motion made on notice, may be employed by a party to a matrimonial action to obtain pension arrears. The Second Department held that a QDRO may be used for such a purpose. [A QDRO is a court decree recognized by the Internal Revenue Service that allows the division of retirement plan benefits incident to a divorce, without triggering current income taxation or early withdrawal penalties.]

Carol and Richard Kraus were married in 1973. During a portion of the marriage, the wife was employed by the State of New York as a hospital nurse. The husband was employed by the Fire Department of the City of New York (the FDNY) as a firefighter from 1977 to 2008. As a firefighter, the husband was a member of a pension system for much of the parties’ marriage. The wife was also a member of a pension system as a State employee.

In 1993, the wife commenced a divorce action. On November 1, 1995, the parties reached a settlement, pursuant to which each spouse was entitled to a marital share of the other spouse’s pension in accordance with the formula set forth in Majauskas v Majauskas (61 N.Y.2d 481). The stipulation expressly provided that “[a] Qualified Domestic Relations Order shall be prepared in the course of any divorce and forwarded to the Court for signature and filed with the Husband’s employer.” A judgment of divorce was signed by the Supreme Court on February 21, 1996.

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Custody Award Reversed Because Case Took Too Long

Posted in Custody and Visitation

It has been said that the court system is broken; its resources stretched to a point where its purposes cannot be achieved.

Take this month’s decision of the Appellate Division, Second Department, in Middleton v. Stringham.

On June 22, 2011, the parties agreed to share joint legal custody of their two children, with physical custody to the mother and liberal parenting time to the father. The parties were divorced by a judgment of divorce entered January 10, 2012. Seven months later, the mother filed a petition to modify the stipulation so as to award her sole legal and physical custody of the children, and the father cross-petitioned for the same relief. After a hearing at which the parties and two of their parent coordinators testified, Westchester County Family Court Judge David Klein modified the stipulation so as to award the father sole legal and physical custody of the subject children.

Generally, on a petition for a modification of joint custody, a court is required to determine whether the parents’ interaction was so acrimonious that it effectively precluded them from joint decision-making, and if so, to award sole custody to whichever parent serves the best interests of the children. Here, however, the Second Department held that the determination that it was in the best interests of the children to award sole custody to the father lacked a sound and substantial basis in the record.

The custody hearing concluded on May 15, 2014, over 20 months after the mother’s  petition was filed, and the order appealed from was issued 6 months after that.

For the most part, the evidence at the hearing focused upon allegations, events, and circumstances relating to the period of time that preceded the filing of the petition and cross petition, and the parents’ acrimonious relationship with each other, with limited evidence about the children’s more current circumstances and best interests. Accordingly, the appellate court found that a new hearing was needed to allow the court to elicit more up-to-date evidence.

Moreover, the Second Department noted that under the unique facts of the case (not discussed), and despite the children’s relatively young ages, the court should have conducted in camera interviews with the children.

The Second Department directed that the new hearing, in camera interviews, and new determination should be done with “all convenient speed.”

The parties have now been litigating for the three years that followed the one-year respite after they settled their custody dispute the first time. These cross-proceedings took so long that the reasons there were brought were no longer relevant. Instead, the appellate court wanted to know what had been going on while the Family Court proceeding was ongoing. Even with  “all convenient speed,” the resolution (with appeal) will take another year or two.

From the children’s perspective, it must seem like their entire lives have been spent with the sights and sounds coming from the court-system battleground. We owe them better.

William J. Larkin III, Esq., of Larkin, Ingrassia & Brown, LLP, of Newburgh, represented the mother. Neal D. Futerfas, Esq., of White Plains, N.Y., represented the father. Joy S. Joseph, Esq., of White Plains, N.Y., served as attorney for the children.

Crediting Child Support With Payments for College Expenses

Posted in Child Support (C.S.S.A.)

College Fund 3Should a court reinterpret a divorce settlement agreement in light of New York’s public policy? It is one thing to void a contract provision as violative of that policy. It’s another to pretend that the contract was intended to be consistent with that policy.

Take, Monroe County Supreme Court Justice Richard A. Dollinger’s recent decision in Luken v. Luken. There, the parties’ June, 2014 separation agreement provided that the couple would jointly finance the college education for their sons. At the time of the agreement the older son had completed his first year of college; the younger son was in high school. The husband was to pay 70 percent of the college cost, the wife the remaining 30 percent, up to a combined cap of $42,000. The agreement also gave the husband a college expense credit against his child support obligation:

The father shall be entitled to receive a credit against his child support for payments for college educational expenses as set forth herein.

The agreement had obligated the father to pay child support of $33,996 annually for his two sons. The amount was calculated using the $141,000 C.S.S.A. “cap,” even though the couple’s combined family income substantially exceeded that amount (the wife estimated the husband’s income at $600,000).

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Attorney for Children Successfully Challenges Custody Order Entered on Parents’ Consent

Posted in Custody and Visitation

Child CustodyThe court-appointed Attorney for the Children may object to and appeal from a custody order entered upon the consent of the parents. So held the Appellate Division, Second Departrment, in its June 26, 2015 decision in Velez v. Alverez, reversing the order of Westchester County Family Court Judge Robert C. Cerrato.

The mother and the father filed custody cross-petitions in Family Court. Over the objection of the Attorney for the Children, the order appealed from was entered upon the consent of the parents, embodying the terms of the parents’ settlement agreement.

On appeal, the attorney for the children contended that the Judge Cerrato approved the agreement without having sufficient information to enable it to render an informed determination as to whether the terms of the agreement were in the best interests of the subject children.

Contrary to the father’s contention, the attorney for the children was empowered to appeal from that order.

As a general rule, it is error as a matter of law to make an order respecting custody based upon controverted allegations without the benefit of a full hearing. Since the court has an obligation to make an objective and independent evaluation of the circumstances, a custody determination should be made only after a full and fair hearing at which the record is fully developed.

The Second Department did note, however, that a hearing may not be necessary where the court possesses adequate relevant information to enable it to make an informed and provident determination as to the children’s best interest.

However, here, the Second Department held that the Family Court did not possess sufficient information to enable it to render an informed and provident determination as to the best interests of the children.

Accordingly, the matter was remitted to the Family Court for an evidentiary hearing on the issues of physical custody and visitation, including in camera interviews of the children and a new determination thereafter of the petitions. The appellate court also ordered that forensic evaluations of the parents and children precede that hearing. In the interim, and until further order of the Family Court, the provisions of the consent order will remain in effect.

Dawn M. Shammas, Esq., of Harrison, served as attorney for the children. Maria J. Frank, Esq., of Yorktown Heights, represented the mother. Evelyn K. Isaac, Esq., of Hastings-on-Hudson, represented the father.

Legislature Passes Spousal Maintenance (Alimony) Formula

Posted in Maintenance, Temporary (Pendente Lite) Relief

Calculator formulaOn June 24, 2015, the New York State Senate passed Bill A7645-2015 relating to the duration and amount of temporary and post-divorce spousal maintenance. The bill passed the State Assembly on June 15th. It awaits approval by Governor Cuomo.

The law’s formulas apply to actions commenced on or after the 120th day after they become law (except for the temporary maintenance formulas which apply to actions commenced on or after the 30th day after they become law). The new law may not be used as a basis to change existing orders and agreements.

The law will undoubtedly be the subject of numerous articles and legal seminars. Years of decisions will be forthcoming that particularly focus on matters of discretion, just as they followed the enactment of the Child Support Standards Act in 1989.

Before getting to the new formulas, the law eliminates a major thorn in side of the matrimonial bench and bar: When equitably distributing the assets of the parties, the court is no longer to consider as a marital asset the value of a spouse’s enhanced earning capacity arising from a license, degree, celebrity goodwill, or career enhancement (however, it may be condidered when making other distributive awards).

As to maintenance, the following highlights may be noted, many of which are contained in the Sponsor’s Memo:

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Stipulations Resolving Divorce Actions Need Not Be Acknowledged

Posted in Agreements and Stipulations

pen in the man's hand and signature

Among their powers notaries public administer oaths and receive and certify acknowledgments or proof of deeds and other instruments in writing (Executive Law §135). An acknowledgement provides proof of the identity of the purported signatory of a document. It reads (Real Property Law §309-a):

On the ____ day of ____ in the year ____ before me, the undersigned, personally appeared ____, personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument.

Domestic Relations Law §236(B)(3) provides that an agreement made before or during the marriage, shall be valid and enforceable in a matrimonial action if such agreement is in writing, subscribed by the parties, and acknowledged . . . .”

Parties often will resolve their divorce actions through with Separation Agreements or Stipulations of Settlements, the terms of which are incorporated in their Judgment of Divorce. Those agreements and stipulations often survive the entry of the Judgment of Divorce as independently enforceable contracts.

In his  June 10, 2015 decision in Defilippi v. Defillipi, Westchester County Supreme Court Justice Paul I. Marx, held that agreements that are entered within pending divorce actions and conclude those actions need not be acknowledged. They must only meet the requirements of C.P.L.R. 2104 and, if not entered in open court, be written, signed and filed with the county clerk.

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Child Support and the Re-Unemancipated Child

Posted in Child Support (C.S.S.A.)

Father and Adult SonAt 18, the child becomes and adult. The parents no longer have custody. However, in New York, the parents’ duty to support does not end until the 21st birthday.

On other other hand, the parents’ duty to support may be relieved if a child attains economic independence through employment, entry into military service or marriage. Further, the child may be deemed constructively emancipated if, without cause, they withdraw from parental supervision and control.

Consider Baker v. Baker, a June 12, 2015 decision of the Appellate Division, Fourth Department. The parties’ son was constructively emancipated in June, 2012 when he moved out of the mother’s residence and into an apartment with friends in an effort to avoid the mother’s rules requiring him to attend school and not use illicit drugs. Until then, the father had been paying child support to the mother. However, after “being treated for withdrawal,” the son moved in with the father.

The question for the court was whether the child’s unemancipated status was revived entitling the father to collect child support. Supreme Court, Niagara County Justice Catherine R. Nugent-Panepinto denied the father’s application.

The Fourth Department reversed. The appellate court agreed with the father that the lower court erred in concluding that the child’s return to parental custody and control neither revived his unemancipated status, nor reinstated the support obligations of his parents

A child’s unemancipated status may be revived provided there has been a sufficient change in circumstances to warrant the corresponding change in status. . . . Generally, a return to the parents’ custody and control has been deemed sufficient to revive a child’s unemancipated status.

Although most of the cases concerning a revival of a child’s unemancipated status have involved a child’s return to the home that he or she abandoned versus the home of the noncustodial parent, the Fourth Department concluded that the return to the noncustodial parent’s supervision and control does not preclude a revival of unemancipated status.

The mother argued that because the father had stipulated to the earlier order that the child was emancipated, therefore termination the father’s support obligation, the father was required to establish an unanticipated and unreasonable change of circumstances. However, the Court held that despite the father’s stipulation that the child was emancipated, the child is not bound by the terms of that agreement, and the issue in this case was the child’s right to receive adequate support. Even assuming, arguendo, that the father was required to show an unanticipated and unreasonable change of circumstances, the appellate court would nevertheless have concluded that the child’s substance abuse treatment and return to parental custody and control constituted such a change of circumstances.

In our view, the reversion to unemancipated status under the facts of this case would promote the underlying statutory principles requiring parents to support children until they reach the age of 21.

The Fourth Department therefore reversed, granting that part of the father’s motion seeking an award of child support; remitting the matter to Supreme Court to calculate the amount of child support owed by the mother to the father.

Catharine M. Venzon, Esq., of Venzon Law Firm PC, of Buffalo, represented the father. Leonard G. Tilney, Jr., Esq., of Lockport, represented the mother.

Lifetime Maintenance (Alimony) Awarded To Wife Capable of Working

Posted in Maintenance

Alimony handedIn its June 4, 2015 decision in Orioli v. Orioli, the Appellate Division, Third Department, affirmed an award of lifetime maintenance (alimony).

The parties were married in 1989 and had two children. In 2009, the wife commenced this action for divorce. Chenango County Supreme Court Justice Kevin M. Dowd awarded the wife nondurational maintenance of $78,000 per year, to be decreased to $50,000 per year once she reached the age of 62. Maintenance would only terminate upon either party’s death or the wife’s remarriage.

The Third Department affirmed, holding that Justice Dowd did not abuse his discretion in his award of maintenance to the wife.

The amount and duration of a maintenance award is left to the sound discretion of a trial court that has considered the statutory factors and the parties’ predivorce standard of living.

A spouse’s ability to become self-supporting with respect to some standard of living in no way (1) obviates the need for the court to consider the predivorce standard of living; and (2) certainly does not create a per se bar to lifetime maintenance.

Indeed, Justice Dowd had addressed the numerous statutory factors and the predivorce standard of living when making the permanent award.

Among other things, he considered the evidence that the marriage was of a long duration (20 years). Justice Dowd further considered that one of the parties’ children resided with the wife, that maintenance would be taxable for the wife and tax deductible for the husband.

It was also noted that the wife had wastefully dissipated $120,000 of marital assets, and lacked candor in her statement of net worth.

Justice Dowd also considered that as of 2009, the husband had reported income of approximately $425,000, while the wife had no income that year. On the other hand, the wife was now capable of working and earning at least $32,000 a year. She did not require additional time or training to gain such employment. Her earning capacity was not affected by her choice not to work during portions of the marriage.

Finally, Justice Dowd recognized that the wife had enjoyed a comfortable standard of living that was commensurate with the husband’s income.

Given the totality of the evidence, we agree that it is unlikely that the wife will become self-supporting so as to attain the lifestyle to which she had been accustomed to during the course of the approximately two-decade marriage.

Accordingly, the appellate court concluded that nondurational maintenance in the amount awarded, which included a reduction in that award at a set future date, was not an abuse of discretion.

William H. Getman, of Woodman & Getman, of Waterville, represented the wife. Michael S. Sinicki, of Hinman, Howard & Kattell, LLP, of Binghamton, represented the husband.