July 2011

Gay marriage rings.jpgLast week, the Appellate Division, Third Department, exercised its equitable muscle to filling in the gaps while the marriage and divorce laws of the different states catch up with each other.  On July 21, 2011, in Dickerson v. Thompson, the court granted a dissolution of a Vermont civil union.

Under Vermont law, the civil union entered by the gay couple was not a marriage. As a result, a New York divorce, “no-fault” or otherwise, was not the appropriate remedy. The appellate court noted that as “the plaintiff would be entitled to a dissolution of a civil union in Vermont,” but for her failure to be a current resident of that state. Giving the plaintiff her need relief, the court declared the broad equity powers of the New York Supreme Court were sufficient to declare the Vermont civil union dissolved. Thus, the plaintiff would now be free to marry, domestically partner, or re-unite with another.

While New York tore asunder one gay couple, more than 800 gay couples were able to marry on July 24, 2011, the first day of such unions under New York’s same-sex marriage legislation.  New York is still coming to grips with joining the rest of the country by making the dissolution of a marriage a matter of one spouse’s choice: a simple declaration that the marriage has broken down irretrievably. That law is just under 10 months old.Continue Reading Defining or Questioning the Marriage Contract: Gay Marriages, No-Fault Divorce and Dissolved Civil Unions

House of money.jpgThe May, 2011 decision of the Appellate Division, Second Department, in Many v. Many, seems, at first blush, to be a rather routine matter. While their divorce action is pending, the interests of the parties are balanced. However, below the surface lurk issues which highlight the frustration and anxiety which spouses must feel as their case is squired through the judicial process.

By Order to Show Cause issued June 13, 2009, two years before this decision, the wife sought interim support.  She also sought a restraint against her husband refinancing the marital residence. One may surmise that Mr. Many was sole owner of the home; it was his “separate property,” subject to his wife’s claim to an equitable share.

Ms. Many received her award of temporary maintenance. However, by his Order of April, 2010, Supreme Court, Westchester County, Justice Edgar G. Walker, denied that branch of Ms. Many’s motion which was to restrain her husband from encumbering the marital residence.  In effect, Mr. Many was authorized to refinance the equity in the marital residence, but restricted from using the funds for any purpose other than paying his pendente lite maintenance obligation.Continue Reading When Mortgaging the Marital Residence Is Necessary to Pay Temporary Support

square peg1.jpgEntering open-court oral stipulations of settlement to a divorce action is treacherous.  It’s easy to miss something or be imprecise in language.

However, striking the deal while the iron is hot is a necessary part of matrimonial litigation.  Letting the parties walk out of the courthouse without putting the day’s agreement “on the record” may cost the parties their deal.  Emotions, particularly in divorce cases, often cause second (and hundredth) thoughts on settlement provisions.  Giving friends and family one more opportunity for input may likely undermine the day’s efforts.

However, there are reasons that the typical written settlement stipulation consumes scores of pages. The boilerplate and legalese so offensive to the public is the necessary consequence of the thousands of decisions which interpret the words found in or missing from decades of previous settlements or otherwise requiring attention in any final agreement.  Moreover, without reflecting on the written word, it’s easy just to miss things.

Take the recent Second Department decision in Zuchowski v. Zuchowski.  The parties’ oral in-court stipulation announced that “all joint bank accounts have been split to the mutual satisfaction of the parties and here and forward each party shall keep any bank accounts in their respective names . . .”Continue Reading The Nature of 529 Education Savings Plans Should Not be Disregarded Under the Guise of Divorce Stipulation Interpretation

Peter_Pan_by_nk_title.pngAt age 18, the child becomes an adult, legally beyond the reach of parental decisions. However, not until age 21 does the legal obligation to support that child come to an end (unless extended by agreement).

A parent’s obligation to support may end (or be suspended) before that, as when a child marries, enters the armed forces, or becomes economically independent.  However, as a practical matter as long as the child remains under a parent’s roof, economic independence may not be found.

Take the June 28, 2011 of the Appellate Division, Second Department, in Smith v. Smith. There, the Court affirmed Suffolk County Family Court Richard Hoffman ‘s denial of a father’s objections to the order of Support Magistrate (and Pace Law School Professor) Cheryl Joseph-Cherry which awarded $200.00 per month child support to the wife/mother.

The parties’ son worked full-time. He paid for his own car insurance and cell phone.  However, the appeallate court found it persuasive that the mother still paid for his food, shelter, clothing, and health and dental insurance.

The decision does not provide greater detail. We don’t know what the child “does” or how much the child earns. Presumably, if the child is in school, we would have been told.

However, the Court did place primary reliance upon the First Department’s 2009 decision in Matter of Thomas B. v Lydia D. That decision, itself placed heavy reliance upon the Second Department’s decision in Matter of Fortunato v. Fortunato, 242 A.D.2d 720, 662 N.Y.S.2d 570 (1997). In Fortunato, the child was found to be emancipated because he was:

working an average of 30 to 35 hours per week … [,] he used his earnings to meet all of his personal expenses, including car insurance payments and telephone charges, and … he voluntarily contributed modest sums to his mother for room and board. Moreover, the son was not attending school, and had no plans to save money for tuition or return to college in the immediate future.Continue Reading Child's Economic Independence, Not Full-Time Employment, Signals End of Support Obligation