Divorce: New York

Divorce: New York

Category Archives: Agreements and Stipulations

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Attacking Open-Court Divorce Stipulations: Is There a Double Standard?

Posted in Agreements and Stipulations
In its October 22, 2014 decision, the Appellate Division Second Department in Ebel v. Ebel  upheld an open-court divorce settlement stipulation against the attack of the wife. In his June, 2012 determination of the lower court, then Supreme Court Suffolk County Justice Hector D. LaSalle (now himself an Associate Justice on the Appellate Division Second Department) had rejected the argument of … Continue Reading

It Just Became Tougher To Validate Prenuptial Agreements

Posted in Agreements and Stipulations, Temporary (Pendente Lite) Relief
The Second Department seems to have taken another bite out of prenuptial agreements. My March 25, 2013 post asked, Is it Open Season on Prenuptial Agreements? That post discussed the Second Department’s February, 2013 decision in Cioffi-Petrakis v. Petrakis and its December, 2012 decision in Petracca v. Petracca. Both cases affirmed Supreme Court Nassau County decisions setting aside … Continue Reading

Ex-Husband May Fire Ex-Wife Despite Intent to Use Employment As Support Device

Posted in Agreements and Stipulations, Maintenance
A couple that used “employment” of the ex-wife by the ex-husband as a device to provide post-remarriage support to the ex-wife was bound to employment rules. The wife could be fired for misconduct. So held the Appellate Division, Fourth Department, in its September 26, 2014 decision in Anderson v. Anderson. The Separation and Property Settlement … Continue Reading

Husband Denied Millions in Separate Property Credits Because of the Definition of “The”

Posted in Agreements and Stipulations, Equitable Distribution
It depended on what the definition of “the” was. In Babbio v. Babbio, the Appellate Division, First Department, on July 17, 2014 defined “the” and otherwise interpreted a prenuptial agreement in ways that cost a husband millions of dollars of separate property credits he sought in his divorce action. Under the parties’ agreement, marital property, generally, was … Continue Reading

Ex-Wife Living with Parent is Not Cohabitation For Purpose of Terminating Maintenance

Posted in Agreements and Stipulations, Maintenance
The parties were divorced in August, 2012 pursuant to a judgment that incorporated a September, 2008 Memorandum of Understanding. The Memorandum provided for maintenance payments to the wife in a specified sum until, as pertinent here, “[the wife] cohabits with an individual for any period in excess of 75 days within any 6-month period of … Continue Reading

Melting Pot (Part 2 of 4): Prenuptial Agreement Voided Applying the Laws of Spain and the Dominican Republic

Posted in Agreements and Stipulations, Jurisdiction
The second of four decisions this month with an international flavor was also decided by New York County Supreme Court Justice Ellen Gesmer. In M v. M, 2014 N.Y.Misc. Lexis 3201, decided July 3, 2014, Justice Gesmer again voided a marital agreement, this time applying the laws of Spain and the Dominican Republic. On June … Continue Reading

New York: The Divorce Melting Pot (Part 1 of 4)

Posted in Agreements and Stipulations, Jurisdiction
Among the challenges for the matrimonial bench and bar is the need to become instantly familiar with any type of business and any family situation. Applying the ever-changing New York family law to matters routine and novel is a Herculean task, worthy of  Dwayne “the Rock” Johnson’s IMAX 3D movie opening this weekend. New York’s cosmopolitan … Continue Reading

Wife Awarded $475,000/Year Rent Received by Husband for East Hampton Residence She Was To Occupy

Posted in Agreements and Stipulations
A wife has been awarded the $475,000 annual rent received by a husband who leased out the parties’ East Hampton residence. The parties’ divorce Modification Agreement provided that the wife shall have “exclusive use and possession of the East Hampton Residence . . . until September 30, 2017 or her earlier remarriage or cohabitation with … Continue Reading

“Clear and Beyond Doubt” is Burden of Proof for Correction of Mutual Mistake in Divorce Settlement Agreement

Posted in Agreements and Stipulations, Equitable Distribution
The Second Department has imposed what may be an impossible burden of proof needed to correct a mathematical miscalculation (the alleged mutual mistake) in a divorce settlement agreement. That is the effect of the March 19, 2014 decision  in Hackett v. Hackett.  After 22 years of marriage, the husband commenced an action for a divorce … Continue Reading

Failure in Prenup to Specify Earnings as Separate Property Warrants Recoupment

Posted in Agreements and Stipulations, Equitable Distribution
The failure of a prenuptial agreement to specify that earnings during the marriage were separate propertywarranted a breach-of-contract recovery as part of a distribution on divorce when those earnings used to pay sparate liabilities. So held Supreme Court New York County Justice Laura E. Drager in her January 15, 2014 decision in R.B. v. M.I … Continue Reading

Court Strikes Prenup Provision Giving Husband the Power to Determine Whether After-Marriage Acquired Property was Marital or Separate

Posted in Agreements and Stipulations
After surgically excising eight words, Saratoga County Supreme Court Justice Thomas D. Nolan, Jr., in his February 7, 2014 decision in Zinter v. Zinter, upheld the balance of a prenuptial agreement. Those words had given the husband the unconscionable power to control whether earnings and other after-marriage acquired property would be placed into joint or indiviual … Continue Reading

Does Small Claims Court Have Jurisdiction to Resolve Divorce Settlement Agreement Disputes?

Posted in Agreements and Stipulations, Counsel Fees, Enforcement of Support and Orders, Jurisdiction, Settlement
Not according to Richmond County Civil Court Judge (and Acting Suprme Court Justice) Philip S. Straniere, seemingly running afoul of a contrary body of case law, particularly in the Second Department. Small Claims Court proceedings may well be the only practical way to redress relatively modest, but often important breaches of divorce settlement agreements as to … Continue Reading

Applying the Ambiguous SUNY-Capped Contribution-to-College Clause

Posted in Agreements and Stipulations, Child Support (C.S.S.A.)
Where a divorce settlement agreement contains a SUNY cap on the parents’ obligations to contribute to college expenses, do you subtract financial aid first from the SUNY cap, or first from the total actual costs of the child who chose to attend a private college? Do you include loans in the “financial aid” formula? In … Continue Reading

Pet Custody: Part 2

Posted in Agreements and Stipulations, Equitable Distribution
Pets should be recognized as a “special category of property,” according to Albany County Supreme Court Justice Michael C. Lynch in his February 19, 2014 decision in Hennet v. Allan. As a result, he ordered a hearing to determine which member of this broken-up couple would be awarded sole possession of “Duke,” their black Labrador retriever. The parties, Alisha and William, … Continue Reading

Claimed Ignorance of C.S.S.A. Treatment of Income Over Cap Not Basis to Set Aside Divorce Settlement Agreement

Posted in Agreements and Stipulations, Attorney and Client, Child Support (C.S.S.A.), Settlement
The alleged failure of the mediator and the husband’s counsel to advise the husband that a court need not apply the C.S.S.A. formula to the husband’s entire agreed-upon income of $1,200,000.00 per year income is not a basis to set aside a divorce settlement agreement, or its $29,500.00 per month child support obligation. So held … Continue Reading

Voluntary Payments Clause Precludes Reduction of Arrears

Posted in Agreements and Stipulations
The “Voluntary Payments” clause of the parties’ divorce stipulation of settlement prevented an ex-husband from using his non-required payments as an offset against his unpaid obligations. So held the First Department in its January 28, 2014 decision in Trepel v. Trepel. Doing so, the appeallate court affirmed the order of New York County Supreme Court Justice … Continue Reading

Ambiguous Agreements to Pay for Children’s College Expenses

Posted in Agreements and Stipulations, Child Support (C.S.S.A.), Enforcement of Support and Orders
What is a “mandatory” college expense to be shared by the parents? In its January 15, 2014 decision in Shaughnessy v. Cox, the Second Department upheld the order of Nassau County Family Court Judge Robin M. Kent (which in turn upheld the determination of Support Magistrate Neil Miller) directing the father to pay 50% of the … Continue Reading

Oral Cohabitation Contract Claim Withstands Motion To Dismiss

Posted in Agreements and Stipulations, Miscellaneous Actions and Proceedings, Pensions
A non-written agreement for cohabitants to share retirement benefits can be enforceable under a breach of contract claim, but will not support claims to impose a constructive trust, or for unjust enrichment or an accounting. Such was the holding of the Appellate Division, Second Department, in its November 13, 2013 decision in Dee v. Rakower. … Continue Reading

Sporadic Visitation by Father is Basis to Increase Child Support

Posted in Agreements and Stipulations, Child Support (C.S.S.A.), Custody and Visitation
Where a divorce settlement agreement provides that the parties have agreed to deviate from the Child Support Standards Act formula in part because of the time the “non-custodial” parent is to spend with the children, a substantial reduction in that visitation may result in an increase in the child support obligation. Such was the holding … Continue Reading

Second Department Approves Interim Counsel Fee in Excess of Prenuptial Agreement’s Cap, But Reverses Award of Interim Spousal Maintenance

Posted in Agreements and Stipulations, Counsel Fees, Temporary (Pendente Lite) Relief
In its September 18, 2013 decision in Abramson v. Gavares, the Second Department briefly reviewed the interplay between prenuptial agreements and interim awards in divorce actions. In this case, the parties were married in 2004 and hade one child, born in 2006. This divorce action was commenced in 2009 [before the 2010 laws on counsel … Continue Reading

Ex-Wife’s Failure to Obtain DRO Before Ex-Husband’s Death Not a Bar to Recovery of Retirement Plan Death Benefits

Posted in Agreements and Stipulations, Equitable Distribution, Pensions
An ex-wife’s failure to obtain a Domestic Relations Order during her ex-husband’s lifetime did not bar relief after his death. The divorce settlement agreement provision that granted her the right to receive the ex-husband’s retirement plan death benefits could be enforced after his death more than seven years after the divorce judgment was entered. Suchwas … Continue Reading

Concealing Terminal Cancer Not Basis to Invalidate Divorce Settlement

Posted in Agreements and Stipulations, Equitable Distribution
The failure of the now-deceased wife to disclose that she was suffering from terminal cancer at the time the parties entered their divorce settlement agreement was not a basis to set aside that agreement. So held the Appellate Division Second Department in its August 28, 2013 decision in Petrozza v. Franzen. Richmond County Supreme Court Justice John … Continue Reading

Contract Enforcement Available Despite Successful Downward Modification of Child Support

Posted in Agreements and Stipulations, Child Support (C.S.S.A.), Modification
A court’s reduction of a divorce judgment’s child support obligations, incorporated from a settlement agreement that survived the entry of that judgment, does not result in a modification of the agreement. The shortfall may still be collected through a separate action to enforce the contract. As Nassau County Supreme Court Justice Leonard D. Steinman noted … Continue Reading