Mendel EpsteinAccording to Jewish law, God prescribed both the way to unite souls in marriage and gave instructions how those souls can be severed. While Jewish law requires one to follow the law of the land, and thus a civil divorce is required, that civil divorce cannot serve as a substitute for a halachic (conforming to the strictures of Jewish law) divorce, the “get.” Without a get, no matter how long the couple is separated, and regardless of civil law documents, in the eyes of Jewish law the couple is still married. As reported at Chabad.org:

“According to biblical law, a married couple is released from the bonds of matrimony only through the transmission of a bill of divorce from the husband to the wife. This document, commonly known by its Aramaic name, “get,” serves not only as a proof of the dissolution of the marriage in the event that one or both wish to remarry, it actually effects the divorce.”

To appreciate the scope of the problem, note, for example, that in December, 2015 70-year old Rabbi Mendel Epstein of Brooklyn (pictured), dubbed “The Prodfather,” was sentenced to 10 years in jail after he was convicted of charging wives thousands of dollars to torture their husbands into delivering a get. See, NY Daily News.

In 1983, New York enacted Domestic Relations Law §253 to address husbands who withhold the get. That section, in combination with DRL §236(B)(5)(h), and DRL §236(B)(6)(d) empowers a court to direct specific performance of a Ketubah (the marriage contract) or other agreement by which a husband previously agreed to provide a get to his wife. Civil contempt sanctions are available for non-compliance. Additionally, for withholding a get, the court may deny a husband any right to equitable distribution of the marital estate and/or award the wife maintenance at a level designed to encourage compliance. If the husband is the plaintiff, the court may also deny him a civil divorce.

In its April 13, 2016 decision in Mizrahi-Srour v. Srour, the Appellate Division, Second Department, affirmed Kings County Supreme Court Justice Esther M. Morgenstern‘s award to the wife of maintenance of $100 per week for five years, which would be increased to $200 per week if the husband did not provide a get to the wife within 60 days, and also distributed to the wife 70% of the marital assets, and awarded counsel fees.

Continue Reading What’s the Court's Dollar Value for a Religious Divorce (“Get”)?

midlife crisisI have no statistics, but it certainly appears as if a disproportionate number of the people consulting me are 43 to 46 years old husbands. I consider that the age of the male midlife crisis. I must count myself among that group.

However, a recent article in the March/April 2015 issue of Scientific American Mind , Debunking Midlife Myths, by Hanna Drimalla, a psychologist and freelance journalist in Berlin, may have a different view. That article notes that psychological studies suggest that midlife crises are real, but the stereotypes are not.

Dr. Drimalla begins by telling of the fortysomething middle manager who quits his day job, buys a sports car and abandons his wife for younger woman. According to scientists, hallmarks of midlife include increased self-reflection, aging, career and family changes, which can seed deep dissatisfaction. However, the author notes that many common beliefs about the midlife meltdown are untrue.

Among other areas, Dr. Drimalla notes that midlife stress does not foredoom us to a life out of control, especially in our relationships. A 2011 Kinsey Institute study of more than 1000 couples in Germany, Spain, the United States, Japan and Brazil found that middle-aged men and women rate their relationships and sex lives higher the longer they have been married. Couples entering middle age with a long-term partner have a good chance of staying together.

Of the marriages that do break down, the husband is not typically the one to walk out. According to the National Marriage Project at the University of Virginia, women instigate two thirds of all divorces – most likely not because they are having midlife crises, but because their husbands are behaving badly.

The author suggests that maybe knowing that our misgivings about midlife are usually exaggerated – and temporary – can make the passage to late maturity just a bit more manageable.

Perhaps my advice to those fortysomethings who consult me should simply be, “wait it out.”

In this week’s Ted Talk, Ruth Chang discusses hard choices. Soon after finishing Harvard Law School, Dr. Chang regretted her decision and switched paths. She received her doctorate in philosophy at Oxford University, and is now a professor at Rutgers focused on choice, freedom, value and action.

For Dr. Chang, “understanding hard choices uncovers a hidden power each of us possesses.” It would seem that the full use of that power is vital when dealing with divorce.

In any easy choice, one alternative is better than the other. In a hard choice, one alternative is better in some ways, the other alternative is better in other ways, and neither is better than the other overall.

“We also shouldn’t think that hard choices are hard because we are stupid.” Choosing after college between law school and philosophy, Dr. Chang remembers thinking:

If only I knew what my life in each career would be like. If only God or Netflix would send me a DVD of my two possible future careers, I’d be set. I’d compare them side by side, I’d see that one was better, and the choice would be easy.

At the time, Dr. Chang “did what many of us do in hard choices: I took the safest option.” But she learned being a lawyer was not who she was. It’s a mistake to think that in hard choices, one alternative really is better than the other, but we’re too stupid to know which, and since we don’t know which, we might as well take the least risky option.” Even with full information, a choice can still be hard.

For Dr. Chang, making hard choices may best be solved by our  “normative powers,” our “power to create reasons.” You create the reasons to pursue your choices.

We get to exercise our normative power, the power to create reasons for yourself, to make yourself into the kind of person for whom [your decision is the right choice].

Making the hard choice is not dictated by reasons given to us. “Rather, it’s supported by reasons created by us. . . . You might say that we become the authors of our own lives.”

In almost all instances, making the decision to end a marriage is a hard choice. But then making the decision what to do when your spouse tells you, “I want a divorce” is a hard choice as well. You are not handed the DVDs of your alternative lives if you stay married or get divorced; of the alternatives of seeking to win the spouse back, or get revenge, or move on.

Continue Reading Divorce: Hard Choices

New York’s Domestic Relations Law §25, enacted in 1907, provides that a marriage is valid, even in the absence of a marriage license, if it was properly solemnized. However, New York County Supreme Court Justice Matthew F. Cooper, in his May 29, 2014 decision in Ponorovskaya v. Stecklow held that D.R.L. §25 could not be used to validate a marriage ceremony that failed to meet the  legal requirements of Mexico where the ceremony was performed. While so holding, Justice Cooper called for the statute to be amended or repealed, and joined the debate on whether Universal Life Church “ministers” could “properly solemnize” marriages.

Justice Cooper’s recitation of the facts merits quotation:

[Ms. Ponorovskaya], who is a clothing designer and business owner in Manhattan, and [Mr. Stecklow], a lawyer, began their relationship in 2004. While in Mexico for a 2009 New Year’s celebration, [Mr. Stecklow] proposed to [Ms. Ponorovskaya] overlooking the Mayan ruins in Tulum. The parties subsequently planned a Mexican destination wedding at the Dreams Tulum Resort & Spa. . . . On February 18th, the couple had a wedding ceremony on the resort’s beach. The ceremony was performed under a chuppah, a canopy under which a couple stands during a Jewish wedding. Certain Hebrew prayers were recited, vows were exchanged, and there was a glass-breaking ritual, as is customary at Jewish weddings.

Despite these traditions, the ceremony was not performed by a rabbi. Instead it was conducted by [Mr. Stecklow]’s cousin, Dr. Keith Arbeitman, a dentist who lives in New York. In 2003, in order to perform a marriage for friends, he became an ordained minister of the Universal Life Church (“ULC”), a distinction easily achieved by paying a fee on the ULC’s website. . . . [A]t oral argument on the motion, [Ms. Ponorovskaya]’s counsel produced a certificate that he printed off the internet certifying that Dr. Arbeitman is indeed a minister in good standing with the ULC. Likewise, during the ceremony Dr. Arbeitman told the audience, “I am an ordained minister — this will be a legal union.”

Continue Reading Invalidity of Licenseless Mexican Marriage Calls For Dismissal of New York Divorce Action

“Chutzpah” may be defined as audacity (wikipedia); or unmitigated effrontery, impudence or gall (urbandictionary.com and dictionary.reference.com). Perhaps Rosemarie B.T. should be pictured in those sources [no, that is not her pictured to the right].

Rosemarie married her second husband, Antony, in a civil ceremony in Beacon, NY, on April 28, 2000. Upon the parties’ application for a marriage license, Rosemarie did not indicate that she was a party to a previous marriage. However, it was not until a month after the parties’ marriage that her Kings County Supreme Court divorce judgment from her first husband was signed on May 24, 2000 (and entered July 6, 2000).

This 2011 Dutchess County Supreme Court action was brought by Antony to declare the marriage void. Rosemarie counterclaimed for divorce.

The October 4, 2013 decision of Acting Supreme Court Justice James D. Pagones (and Judge of the Surrogate’s Court) in Antony T. v. Rosemarie B.T. resolved Rosemarie’s motion to take this matter off the trial calendar, award her $2,543.31 per month as interim maintenance; and to direct Antony to pay $20,000.00 for interim counsel fees. It also resolved Antony’s motion for summary judgment declaring that his marriage is void and to dismiss Rosemarie’s counterclaim for divorce.

New York allows a person to have solely one spouse at a time, thus, polygamy and bigamy are prohibited in New York [citation omitted]. DRL §6 states that where one of the parties has a living spouse from a prior marriage and that prior marriage was not dissolved by either an annulment, divorce, or pursuant to DRL § 220, the second marriage is void ab initio . . . .

Justice Pagones ruled that the documents submitted by Antony established, prima facie, that Rosemarie was still legally married to another man at the time of the parties’ wedding and, therefore, the “marriage” of the parties on April 28, 2000 is void.

Moreover, Antony introduced evidence that Rosemarie married, once again, on February 14, 2002 [Happy Valentine’s Day]. Thus, Antony established, prima facie, that Rosemarie was precluded from seeking permanent maintenance.

As Rosemarie failed to raise an issue of fact requiring resolution by trial, Justice Pagones granted Antony summary judgment declaring the April 28, 2000 marriage void, dismissing Rosemarie’s counterclaim for divorce, and holding that Rosemarie was precluded from seeking maintenance.

It is noted that Domestic Relations Law §236(B)(2) includes actions to declare the nullity of a void marriage within the category of “matrimonial actions.” Under D.R.L. §236(B)(5-a), in any matrimonial action, the court “shall” make an award of temporary maintenance in accordance with the formula enacted in 2010. Under D.R.L. §236(B)(6), post-divorce maintenance “may” be ordered in any matrimonial action in such amount as justice requires.

Here, however, Antony was saved from the potential maintenance awards by Rosemarie’s “third” marriage. As the marriage to Antony was void from its beginning, Rosemarie’s third marriage was presumably valid because when it occurred in 2002, Rosemarie was divorced from her first husband. The second marriage (to Antony) didn’t count.

Betty J. Potenza, of Highland represented the husband. Michael S. Pascazi, of Pascazi Law Offices, PLLC, of Fishkill, represented the wife.

 

Marital Residence.jpgA spouse contributing separate property (most commonly pre-marital, gifted, or inherited funds) to the purchase of the marital residence does not make a gift of (half of) that payment to the other spouse, even if the residence is held by the parties jointly.

So was the holding of the Appellate Division, Fourth Department, in its September 28, 2012 decision in Pelcher v Czebatol. The appellate court affirmed the ruling of Monroe County Supreme Court Justice Joanne M. Winslow, who had granted the wife’s motion for an order determining that she was entitled to a credit from the proceeds of the sale of that residence in the amount of $149,500 used for the purchase of that home.

It is well settled that a spouse is entitled to a credit for his or her contribution of separate property toward the purchase of the marital residence, including any contributions that are directly traceable to separate property, even where, as here, the parties held joint title to the marital residence.

The wife had established that her mother had transferred approximately $150,000 in mutual funds to the wife’s mutual fund account. The wife withdrew the funds from that account and deposited them into her individual checking account. From that individual account, the wife paid $149,500 toward the purchase of the marital residence.

The appellate court noted that contrary to the husband’s contention, Justice Winslow properly determined that, although title to the marital residence was taken as tenants by the entirety (jointly-owned by the husband and wife), the wife did not contribute her separate property toward the purchase of the home as a gift to her husband.

Reading this decision, it would appear that the wife had died prior to the divorce. Thus, the divorce action should have “abated.” A divorce action must end if it is not completed before the death of a spouse (unless all that remained was the “ministerial” act of entering the Judgment of Divorce to reflect an otherwise completed matter).

However, Seema Ali Rizzo, Esq., of Gallo & Iacovangelo, LLP, of Rochester, counsel for the wife, advises that the hearing resulting in the decision was held in December, 2010. While the husband’s appeal from Justice Winslow’s decision was pending, the divorce was granted and judgment was entered. When the wife passed away, she was already divorced. The wife’s mother (executrix of the wife’s estate) was substituted for the wife on the appeal.

David A. Merkel, Esq., of Merkel & Merkel, LLP, also of Rochester, represented the husband.

Church and State.jpgIn the United States, there is perhaps no greater blending of Church and State than with marriage and divorce. New York’s recognition of same-sex marriage shines a light on a debate as old as the country.

It took the 16th century Protestant Reformation to reject marriage as a religious sacrament.  For  Martin Luther, marriage was “a worldly thing.”  In the 17th century, the English Parliament declared “marriage to be no sacrament.” It was to be performed by a justice of the peace, not by a minister. The Puritans brought secular marriage to America. Back in England the pendulum swung back to the religious right in 1753, when the Church of England was put in charge of all marriages (including those of Catholics, but not of Quakers and Jews).

In New York, marriage is a hybrid. Domestic Relations Law §10 declares:

Marriage, so far as its validity in law is concerned, continues to be a civil contract, to which the consent of parties capable in law of making a contract is essential.

Continue Reading Marriage and Divorce: Is it Time for Separation of Church and State?

Couple buying insurance.jpgThe Washington Post reported October 17, 2010 on the recent availability of Divorce Insurance. It is presented, somewhat, as an alternative or reaction to prenuptial agreements.

WedLock Divorce Insurance is an annually renewable policy of casualty insurance that pays out a lump sum of cash if a marriage ends in divorce. It is sold in payoff units of $1,250. Thus, if a 10-unit policy is chosen, the payoff on divorce would be $12,500 ($1,250 x 10).

The premium for each unit is $15.99 per month. The website points out that that’s less than 53 cents a day per unit, perhaps a tenth of the price of a cup of premium coffee.

However, there is an initial four-year Waiting Period during which divorces are not covered. So, premiums of at least $767.52 (48 months x $15.99 per month) would have to be paid get the $1,250.00 payoff for a divorce judgment entered after that period. Good news, though! For every 12 months of premiums, or $191.88 (12 x $15.99), paid after the Waiting Period, each unit does increases in value by $250.00.

For an additional payment, one can purchase the Accelerated Maturity Rider, reducing the Waiting Period to three years. A Return of Premium Rider is also available to recover premium payments made if the divorce is entered before the end of the Waiting Period.

The website provides a Divorce Probability Calculator, predicting your likelihood of a divorce, within a 13% margin of error, by answering 20 simple questions.

WedLock Divorce Insurance can be purchased by a spouse at any time with or without the knowledge or consent of the other spouse. Moreover, anybody can buy the policy: parents can bet on the success of a child’s marriage.

The website points out that since there is no accrued or accumulated cash value to the policy before the divorce is finalized, there is no marital asset to divide. (Query: would use of marital funds to pay the premiums constitute waste or a “non-marital”expenditure?).

To quote Yakov Smirnoff, “America, what a country!”

dance couplel.jpgAs reported in the Washington Post on September 19, 2010, an April, 2010 study in the Journal of Police and Criminal Psychology, debunks the apparent myth that the divorce rate for police officers is higher than the general population. Using data from the 2000 U.S. Census, the study concludes that 16.35% of previously-married Americans reported themselves as divorced or separated.

Dancers and choreographers registered the highest divorce rates (43.1%), followed by bartenders (38.4%), massage therapists (38.2%), casino workers, telephone operators, nurses and home health aides.

Agricultural, sales, and nuclear engineers were among the 10 occupations with the lowest divorce rates. That group also included optometrists (4%), clergy (5.6%) and podiatrists (6.8%).

Only 14.5% of previously-married police officers listed themselves as divorced or separated.

The Post article noted that remarried Americans would have been excluded from the divorced or separated category.

The study authors conceded that the study raised more questions than it answered, beginning with “Why?”