In its February 20, 2013 decision in Cioffi-Petrakis v. Petrakis, the Second Department affirmed the decision of former Nassau County Supreme Court Justice Anthony J. Falanga which set aside the parties’ prenuptial agreement. Indeed, decisions over the past year indicate that there may be a pendulum swinging towards easing the burden on the party (generally, the … Continue Reading
On the wife’s motion for temporary relief, Supreme Court, New York County Justice Deborah A. Kaplan in Lennox v. Weberman, awarded the wife tax-free maintenance of $38,000 per month, plus the wife’s unreimbursed medical expenses up to $2,000 per month, interim counsel fees of $50,000, and expert fees of $35,000. By its February 26, 2013 … Continue Reading
The First Department, in its February 19, 2013 decision in David v. Cruz, threw out an entire settlement agreement because of its failure to include language required by the Child Support Standards Act. The C.S.S.A. sets out a presumptive formula for the calculation of a parent’s child support obligation. Parents are free to agree to … Continue Reading
Two decisions within the last 10 days confirm the need for agreements relating to support to be in (an acknowledged) writing, and then incorporated in a court order. In one, the Second Department affirmed the award of maintenance arrears without a hearing despite the claimed reduction of maintenance under an oral modification of the parties’ … Continue Reading
In its December 5, 2012 decision in Petracca v. Petracca, the Second Department affirmed the decision of Nassau County Supreme Court Justice Jeffrey S. Brown that set aside a postnuptial agreement due to the husband’s overreaching at the time of signing. Four months after the parties’ 1995 marriage, they entered into a postnuptial agreement. The agreement … Continue Reading
In its November 20, 2012 decision in Kang v. Kim, the First Department affirmed what appears to be an unwarranted interpretation of a divorce settlement marital residence buyout provision. In doing so, the appellate court yielded to the construction of the provision used by the “trier of fact” to resolve the ex=wife’s post-divorce motion to enforce the parties’ … Continue Reading
In last week’s blog, I discussed the extraordinary analysis undertaken by Monroe County Supreme Court Justice Richard A. Dollinger in L.L. v. R.L. in order to apply the agreement made by parents at the time of their divorce to finance their children’s college education “according to their respective means at the time the child attends college.” On … Continue Reading
“It depends on what the meaning of the word ‘is’ is.” Bill Clinton, August 17, 1998 “What does “means” mean?” Justice Richard A. Dollinger, June 22, 2012 By statute, a court may direct a parent to contribute to a child’s education, even in the absence of special circumstances or a voluntary agreement of the parties. … Continue Reading
Under a 2004 stipulation of settlement that was incorporated, but survived the entry of the judgment of divorce that ended the parties seven-year marriage, the ex-husband/father was to pay $250,000.00 in annual maintenance and $140,000.00 in annual child support emancipated. The stipulation further provided that the father would be able to apply for a reduction … Continue Reading
In a September 12, 2012 press release, MyDivorcePapers.com, a self-proclaimed “established leader in online divorce forms,” announced that it had recently released another video in their online divorce forms series, How to File New York Divorce Forms Online. The video “is an education and informational video aimed at giving summary overview of specific divorce laws along … Continue Reading
The ex-husband brought this post-divorce civil action against his ex-wife and Alan L. Finkel, the attorney who mediated the spouses’ 2007 divorce settlement agreement, seeking to set aside that agreement. In his July 12, 2012, decision in Valkavich v. Valkavich, Suffolk County Supreme Court Justice Ralph T. Gazzillo, granted summary judgment dismissing the complaint. The … Continue Reading
Parents sometimes enter child support agreements which track the presumptive formula set out in New York’s Child Support Standards Act (Family Court Act §413; Domestic Relations Law §240[1-b]). However, parents in their agreements often deviate from the presumptive formula to reflect various considerations. That deviation for a married couple may reflect the delicate balancing of property rights, … Continue Reading
In a stipulation which settled a prior dispute between parents, the father agreed to pay child support. The mother had sole custody of the parties’ child. The father thereafter commenced a Nassau County Family Court proceeding to terminate his child support obligation. Upon the mother’s motion, Support Magistrate Penelope Beck Cahn dismissed the father’s petition. … Continue Reading
The premarital agreement of the parties limited their rights to obtain spousal support upon divorce. It also contained a waiver of their rights to counsel fees. Nevertheless, recently-retired New York County Supreme Court Justice Saralee Evans awarded the wife $6,000 per month in unallocated pendente lite support (an award not specifying how much of it … Continue Reading
Particularly when it comes to agreements fixing child support obligations, ”shaking on it” is simply not enough. Both the Domestic Relations Law and the Family Court Act authorize parents to enter agreements which establish their child support obligations. DRL §§236B(3) and 240(1-b)(h) and FCA §413(1)(h) set out many requirements for such agreements. Nothing suggests that modifications … Continue Reading
The parties’ 2008 Separation Agreement which resolved their divorce provided for joint legal custody of the parties’ two children, with their primary residence being with the mother. Nine months after the divorce, the mother remarried and moved to her new husband’s residence in Florida. The children remained in New York with their father. The parties … Continue Reading
If the parents reach an agreement resolving custody litigation, may the court approve and order the settlement over the objection of the attorney for the children. Yes, as long as the attorney for the children is given the right to be heard by the court and the court determines that the settlement is in the … Continue Reading
When your lawyer tells you that you are about to make a really bad deal, you disregard that advice at your peril. That is one lesson to be learned from a split-decision of the Appellate Division First Department in its April 17, 2012 decision in Barocas v. Barocas. The court affirmed a decision of Supreme Court … Continue Reading
Continuing to demonstrate New York’s public policy enforcing settlement agreements and the finality they bring to bear on divorce litigation, the Court of Appeals on April 3, 2012 held that the post-agreement discovery that the fact that a marital account had been invested with Bernard Madoff and retained by the husband upon the divorce was not … Continue Reading
Show your work. Mistakes happen, and probably a lot more often than any of us matrimonial lawyers would care to admit. We all make mistakes. I am happy to say that most mistakes are alleviated by collegial adversaries working together to put things right. However, sometimes the spouse benefiting from the mistake in marital settlement agreement … Continue Reading
As noted in the previous blog, agreements which resolve marital rights and obligations are encouraged. They will be enforced absent demonstrable improprieties. In his January 23, 2011 decision in Capone v. Capone (pdf), Suffolk County Supreme Court Justice Ralph T. Gazzillo granted summary judgment dismissing a wife’s action to rescind and declare null and void a … Continue Reading
There are may circumstances which courts recognize warrant revisiting a divorce resolution. On the other hand, ongoing litigation is often unfounded and a result of the anger, bitterness, sadness, desire for revenge, etc. In her February 3, 2012 decision in D.W. v. R.W., Westchester County Supreme Court Justice Francesca E. Connolly imposed $17,500.00 in sanctions and … Continue Reading
You’ve worked out your divorce settlement, executed your agreement, and had that agreement incorporated in your Judgment of Divorce. Then, the law changes. What impact does that have on your settlement? As a practical matter, none! Most often, a change in divorce law can be the result of a judicial decision, but it can also be … Continue Reading
Shlomo Scholar and Shoshana Timinisky married in 2005. They had one child the next year. The year after that they entered a stipulation of settlement to resolve their divorce action. Included in that stipulation was the parties agreement that Ms. Timinisky would have sole custody of the parties’ child. However, the parties also agreed that … Continue Reading
