Collection of popular social media logosWith the increasing use of social media evidence, what may a lawyer do to gather the evidence (or to prevent it from being gathered)? More and more, social media is finding its way into court cases. Family law matters may be leading the way.

A 2013 Third Department decision affirmed the imposition of an order of protection against a mother prohibiting her from posting any communications to or about the children on any social network site (prior blog post). Several decisions have made use of material posted on Facebook (see, e.g., Terzani [2014]; Elissa N. [2013]; B.M. [2011]). A 2015 case authorized Facebook as a method of court-approved substituted service of a divorce summons. A 2014 Family Court case authorized such service of a child support petition (prior blog post).

Continue Reading May Your Spouse’s Attorney Ethically Access Your Facebook Page?

On August 30th, the state’s highest court overruled its prior holdings and expanded the definition of parent to grant a standing to seek custody to a domestic partner who agreed with the biological parent to the conception of a child and the raising of the child together. That decision in Matter of Brooke S.B. v Elizabeth A.C.C. was quickly followed by the decision of the Appellate Division, Second Department in Matter of Frank G. v Renee P.-F. 

In the September 6th decision of the Second Department, Joseph and Frank were domestic partners who lived together for some five years. Together they asked Joseph’s sister, Renee, to act as a surrogate and give birth to the child resulting from Renee’s being impregnated with Frank’s sperm. The surrogacy contract contemplated that Renee would surrender her parental rights in order for Joseph to adopt the child. The understanding contemplated that Renee would remain a part of the child’s life.

Continue Reading Domestic Partner of Biological Father May Seek Custody

What happens when a deceased father failed to maintain life insurance for the benefit of his ex-wife and the children of the marriage entitled to receive support? Is there a claim, against whom, and for how much?

Those were the questions answered by the Appellate Division, Second Department, in its August 31, 2016 decision in Mayer v. Mayer.

There, the plaintiff (mother) was the second wife of Paul S. Mayer (father). Pursuant to their 2000 judgment of divorce, the father was, among other things, obligated to pay child support and educational expenses for the children of that marriage, Alanna and Matthew. The judgment of divorce also provided that the father was to maintain a term life insurance policy in the face amount of $1,000,000 for the benefit of Alanna and Matthew, with the mother being named as trustee on their behalf, “until such time as his support obligation is fully satisfied.”

In 2001, the father married Kristen and thereafter had two children, Jonah and Ryan.

In 2005, due to the father’s claimed inability to pay the premiums on the $1,000,000 policy required under the judgment of divorce, the policy was converted into two policies insuring his life, both of which were issued by New York Life. One policy, with a face amount of $200,000, listed the father as the owner and the mother as the beneficiary. The other policy, with a face amount of $100,000, listed the mother as both the owner and the beneficiary. The mother paid the premiums on the $100,000 policy.

In 2006, the mother moved in the Family Court to have the father held in contempt for, among other things, failing to maintain the $1,000,000 policy required by the judgment of divorce. The Family Court found the father to be in contempt and directed him to comply with the life insurance provision of the judgment of divorce. However, apparently the father could not obtain a new policy in the amount of $1,000,000 because of ill health.

Continue Reading Redressing the Failure to Maintain Life Insurance Required by Divorce Judgment

In its August 24, 2016 decision in Maddaloni v. Maddaloni, the Appellate Division, Second Department, upheld the rulings of Supreme Court Suffolk County Justice Justice Carol Mackenzie that invalidated the all-but-complete maintenance waiver contained in a 23-year-old postnuptial agreement, awarding the wife maintenance for 10 years. The appellate court also upheld Justice Mackenzie’s award to the wife of 25% of the $2,000,000 appreciation during the marriage in the value of the husband’s pre-marital business, Maddaloni Jewelers of Huntington.

The Maddalonis were married in January, 1988. At the time of the marriage, the husband owned several cars, a house, and a jewelry business, and he was in contract to buy a shopping center. On August 22, 1988, less than eight months after the parties were married, they experienced marital difficulties and entered into a postnuptial agreement. Among other things, this agreement provided that, in the event that the parties divorced after the first five years of marriage, the wife agreed to accept the sum of $50,000, payable in five equal annual installments of $10,000, “in full satisfaction of any and all claims of whatsoever kind and nature she may have at that time for past or future support or for distribution of assets.”

Continue Reading Maintenance Provision of Postnuptial Agreement Voided; Wife Awarded 25% of Appreciation of Husband’s Premarital Business

Marital and divorce agreements have to be “notarized.” But does the notary have to be present and witness the actual signing?

New York’s Domestic Relations Law §236B(3) states “[a]n agreement by the parties, 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 or proven in the manner required to entitle a deed to be recorded.”

What does “acknowledged or proven in the manner required to entitle a deed to be recorded” mean.

In her June 1, 2016 decision in B.W. v. R.F., Westchester County Supreme Court Justice Linda Christopher upheld a prenuptial agreement in which the notary’s “acknowledgment” used the wrong wording.

Continue Reading Do Marital and Divorce Agreements Have To Be Signed in the Presence of the Notary?

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Contested litigation is remarkably unsuited for healing a divorced family. One gets a sense of the feelings of frustration, if not helplessness a Family Court Judge may feel as she tries to figure out “what do we do next?” What remedy should be ordered that will actually strengthen the bonds between parent and children?

Consider the July 1, 2016 decision of Erie County Family Court Judge Mary G. Carney in Matter of Gregory S. v. Dana K. Judge Carney was charged with resolving the claims of a father, rejected by his four children in substantial part due to the mother’s willful violations of visitation orders.

Judge Carney noted that the family’s history was branded by protracted, caustic litigation, toxic interpersonal conflict and all categories of broken hearts.

Continue Reading Mother Ordered to Write Book Report for Disobeying Father’s Visitation Rights

A divorce settlement agreement requires clear language. It must also anticipate the thousands of details needed to complete the financial disentanglement and establish post-divorce rights and obligations. The parties must unceasingly ask their counsel “what if? Before signing their agreement, parties must envision how each type of transaction will actually be accomplished.

That need is made clear in the June 29, 2016 decision of the Appellate Division, Second Department, in Frances v. Frances.

The parties entered their divorce stipulation of settlement on January 19, 2010. On this post-judgment application, the ex-husband asked to enforce the stipulation by directing his former wife to pay him 50% of the refund received from the parties’ 2009 joint tax return, 50% of the school tuition and camp expenses for the parties’ youngest child, and 50% of the cost of certain repairs to the marital residence. Rockland County Supreme Court Justice William A. Kelly granted that relief and the wife appealed.

Continue Reading The Divorce Settlement Must Predict How Finances Will Actually Work

Focused man paying his bills in the living room

The filing of a divorce summons commences the action and terminates the marital economic partnership. As noted by the Court of Appeals in Mesholam v. Mesholam, 11 N.Y.3d 24, 27, 862 N.Y.S.2d 453 (2008), that partnership is to be considered dissolved when a divorce action is commenced.

Retroactive to the first request for support, often contained in the divorce summons, itself, the trial court has the power to order both spousal and child support. It can also determine the parties’ relative responsibilities for marital residence carrying charges and other expenses.

In light of the trial court’s power to determine the parties’ rights and obligations for the period the divorce action is pending, what should be done if a party’s uses marital assets to pay living expenses accruing after the divorce action is commenced.

In its June 30, 2016 decision in Carvalho v. Carvalho, the Appellate Division, Third Department, held that marital assets may be used while a divorce action is pending to pay for legitimate household and living expenses without needing to later offset the division of those assets. Moreover, the burden is on the non-spending party to prove that the marital assets were not used for such “legitimate” purposes.

Continue Reading Charging a Party for Spending Marital Assets During the Divorce Action

The Appellate Division, Second Department, has held in its June 15, 2016 decision in Schiero v. Perrotta, that a mother’s testimony was a sufficient foundation for the admission in evidence of her children’s medical bills and her proof of payment of those bills.

The mother had filed a violation petition alleging that the father had failed to pay his pro rata share of the children’s unreimbursed medical expenses. At the ensuing hearing, the mother testified that she had incurred $980 in medical expenses for the children. She attempted to offer into evidence copies of medical bills and proof of payment.

Support Magistrate Rachelle C. Kaufman, however, refused to admit the medical invoices into evidence on the ground that the medical invoices were hearsay, and were not admissible through the mother’s testimony. Magistrate Kaufman then held that the mother failed to demonstrate the amounts of each individual medical expense, or when they were incurred. The Magistrate dismissed that branch of her petition. The mother filed objections, which were denied by Rockland County Family Court Judge Sherri L. Eisenpress.

Continue Reading Mother’s Testimony Sufficient Foundation for Receipt in Evidence of Health Care Invoices and Payment Records