Divorce: New York

Divorce: New York

Category Archives: Equitable Distribution

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Wife Denied Separate Property Credit Against Home Deeded By Her to Herself and Husband

Posted in Equitable Distribution
Six years before the parties’ marriage in June 2000, the wife became the sole owner of real property, which would later become the parties’ marital residence. At the time of marriage, the wife owned the property free and clear of any liens or encumbrances. In 2005, apparently in an effort to consolidate debt, the husband … 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

Being Bound by Statements in Tax Returns and Court Papers

Posted in Equitable Distribution, Evidence
“Estoppel” is the principle that precludes a person from asserting something contrary to that inconsistent with a previous statement, position or ruling. Two decisions last month bringing the principal and to focus. First, the June 4, 2014 decision  of Kings County Supreme Court Justice Jeffrey S. Sunshine in Zito v. Zito primarily resolved the wife’s motion for temporary relief in a … 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

Fraudulent Tax Returns in Divorce Actions: Sword or Shield?

Posted in Child Support (C.S.S.A.), Equitable Distribution, Tax Matters
It is certainly not a rare problem. When confronted with fraudulent income tax returns, what is a divorce court to do? Should they be used as swords or shields? In her January 31, 2014 decision in Morille-Hinds v. Hinds, Supreme Court Queens County Justice Pam Jackman Brown appears to have disregarded the failure to report … 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

Deducting Separate Property Business Losses on Joint Tax Return May Transform Property to Marital

Posted in Equitable Distribution
Sometimes developing divorce case law seems like a bad game of telephone. Take the February 7, 2014 decision of the Fourth Department in Foti v. Foti. Here, the Court reversed the order of Supreme Court, Monroe County Justice Kenneth R. Fisher which had granted a wife partial summary judgment determining that various real estate entities and … Continue Reading

Court Clarifies Civil Contempt and the Fifth Amendment Privilege

Posted in Enforcement of Support and Orders, Equitable Distribution
The Second Department used its December 18th decision in El-Dehdan v. El-Dehdan to clarify the parties’ relative burdens of proof on an application for contempt where the Fifth Amendment privilege against self-incrimination has been invoked. The court also harmonized inconsistencies in case law as to the elements of civil contempt. The court held that there was no element … Continue Reading

Hearing Ordered to Determine Custody of Dog in Divorce Action

Posted in Custody and Visitation, Equitable Distribution
Blending science, culture, compassion and philosophy with legal precedent, Justice Matthew F. Cooper, in his November 29, 2013 opinion in Travis v. Murray, agreed to hold a one-day, winner-take-all hearing to determine the fate of a divorcing couple’s dog, Joey, a two and a half year-old miniature dachshund.  Shannon Louise Travis and Trisha Bridget Murray were married on … 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

Credits on Divorce for Using Marital Funds for Separate Property Assets

Posted in Equitable Distribution
The August 21, 2013 decision of the Appellate Division, Second Department in Patete v. Rodriguez may have expanded the credits available to the non-titled spouse when marital funds are expended on a separate-property asset. When New York adopted its Equitable Distribution Law in 1980, courts were now longer bound by which spouse held title to … Continue Reading

The Second Department Rules on Child Support Parental Income Cap, Transfer of the Marital Residence, and Judgment Formalities

Posted in Child Support (C.S.S.A.), Equitable Distribution, Forms, Judgments and Orders, Statutes
In a May 8, 2013 decision in Mejia v. Mejia, the Appellate Division, Second Department, modified a divorce judgment’s provisions concerning the cap on combined parental income, the disposition of the marital residence, college expenses for three children ages 14, 10 and 6, and judgment inconsistencies with the underlying decision and judgment  formalities. After the … Continue Reading

Wife Wins Million-Dollar Lottery While Divorce Action Is Pending

Posted in Child Support (C.S.S.A.), Counsel Fees, Equitable Distribution, Temporary (Pendente Lite) Relief
What does a court do with a wife who claims not to have discovered that she was a million-dollar winner of a May 19, 2011 lottery drawing until only days before the ticket would have expired a year later, and 11 months after she was awarded temporary support and counsel fees in her pending divorce action? … Continue Reading

Considering Veteran’s and Social Security Disability Payments in Divorce

Posted in Equitable Distribution, Maintenance
In a January 15, 2013 decision in Alvarado v. Alvarado, Richmond County Supreme Court Justice Catherine M. DiDomenico, held that the husband’s veteran’s and Social Security disability benefits are separate property for purposes of equitable distribution. Moreover, the veteran’s disability benefits could not be considered on a maintenance award. The Social Security benefits could. As discussed in … Continue Reading

Husband in Divorce Action Ordered to Refinance Home, or Pay Off Half of Mortgage Balance

Posted in Equitable Distribution, Temporary (Pendente Lite) Relief
In order to prevent the foreclosure of the marital residence, a court in a divorce action, and prior to judgment, may order the spouses to cooperate with a refinance application. Moreover, if the property is not successfully refinanced, the court, before divorce judgment, may compel a spouse to satisfy (at least) one half of the … Continue Reading

Husband Gets No Separate Property Credit in Divorce for Pre-marital Home Deeded to Himself and His Wife Jointly

Posted in Equitable Distribution
In its December 13, 2012 decision in Murrary v. Murray, the Appellate Division, Third Department, affirmed the determination to deny a husband an equitable distribution credit for the value of a home which he owned before the marriage and which, after the marriage, he deeded to himself and his wife jointly. The parties were married in 1986 … Continue Reading

Income Generated by Tangible Assets Divided in Divorce Is Considered on Maintenance Award

Posted in Equitable Distribution, Maintenance
In its November 14, 2012 decision in Shah v. Shah, the Appellate Division, Second Department, held that Suffolk County Supreme Court Justice Mark D. Cohen did not improperly “double count” the income generated by the husband’s business when he awarded the wife four years of maintenance. That business was started by the husband and a … Continue Reading

Payment of Husband’s Pre-marital Support Arrears Results in Equitable Distribution Credit to the Wife

Posted in Equitable Distribution
Distinguishing the 2009 Court of Appeals decision in Mahoney–Buntzman v. Buntzman, the Second Department, in its October 24, 2012 decision in Levenstein v. Levenstein, has held that if marital funds are used to pay pre-marital support arrears, the non-obligated spouse may be awarded a credit towards equitable distribution. In 1995, before the current marriage, Mr. … Continue Reading

Contribution of Separate Property to Purchase of Jointly-Owned Marital Residence Was Not a Gift

Posted in Divorce, Equitable Distribution
A 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 … Continue Reading

Mandating a Pension’s 50% Joint and Survivor Option in a Divorce

Posted in Equitable Distribution, Pensions
Almost all ERISA-Qualified Defined Benefit Plans (commonly known as “pensions”) are required to offer annuities (a stream of monthly payments). Where there is no divorce, the annuity must be paid as a Qualified Joint and Survivor Annuity unless the Participant’s spouse consents in writing at the time of retirement to a different form of payment. … Continue Reading

Husband Keeping Madoff Account in Divorce is Not Basis to Change Pre-Collapse Settlement Agreement

Posted in Agreements and Stipulations, Equitable Distribution, Settlement
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