Divorce: New York

Divorce: New York

Category Archives: Maintenance

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Double-Dipping: The Interrelationship of Business-Based Distributive Awards and Spousal Support

Posted in Equitable Distribution, Maintenance
For the second time in six weeks the Appellate Division, Third Department, reduced an award of spousal maintenance for the failure to adjust for the distributive award based on the husband’s business. In its October 22, 2015 decision in Gifford v. Gifford, the Appellate Division, Third Department, modified a maintenance award because of the trial… Continue Reading

Maintenance and the Pentagenarian Spouse

Posted in Maintenance
The award of maintenance to the divorcing unemployed or under-employed spouse in his or her 50s may be one of the more challenging exercises of a judge’s discretion in a divorce action: too old to develop a lucrative career; too young to collect retirement assets built up over a lengthy marriage. Although not exactly on… Continue Reading

Double-Dipping: Using an Income Stream as Both an Asset and to Calculate Maintenance

Posted in Equitable Distribution, Maintenance
A professional practice is an asset which may be valued and equitably distributed in a divorce. Generally, that value is a function of the income generated by the practice after deducting reasonable compensation being paid to the professional. However, once valued, the income attributable to ownership of the practice may not also be the basis… Continue Reading

Lifetime Maintenance (Alimony) Awarded To Wife Capable of Working

Posted in Maintenance
In its June 4, 2015 decision in Orioli v. Orioli, the Appellate Division, Third Department, affirmed an award of lifetime maintenance (alimony). The parties were married in 1989 and had two children. In 2009, the wife commenced this action for divorce. Chenango County Supreme Court Justice Kevin M. Dowd awarded the wife nondurational maintenance of $78,000… Continue Reading

Child Support and Maintenance: A Case Study: Sawin I

Posted in Child Support (C.S.S.A.), Maintenance
It’s worthy of note when enough information is provided in an appellate decision to see “how” maintenance and child support were computed. The May 6, 2015 decision of the Appellate Division, Second Department, in Sawin v. Sawin, provides such an opportunity. In Sawin, the parties were married in 1988 and had three children. During the marriage,… Continue Reading

Litigating Prenuptial Agreements Is Going To Get Messier

Posted in Agreements and Stipulations, Counsel Fees, Maintenance
Particularly in the Second Department, the last few years have brought a host of cases threatening the enforceability of prenuptial agreements. To review a few just type “prenup” in the keyword search at right. It’s going to get worse. New York’s Domestic Relations Law §236(B)(3) provides that prenuptial and other marital agreements executed with proper… 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

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

Crediting Voluntary Payments Against Retroactive Support Awards

Posted in Maintenance
For what expenses will a support payor (here, the husband) receive credit against the retroactive support award made incident to the final divorce determination? The Second Department clarified the rules in its May 14, 2014 decision in McKay v. Groesbeck. Six years earlier (!), on a prior appeal (Groesbeck v. Groesbeck, 51 A.D.3d 722, 858… Continue Reading

Support Modification Agreements: Get’em in Writing; Get’em into Court (Part II)

Posted in Agreements and Stipulations, Child Support (C.S.S.A.), Enforcement of Support and Orders, Maintenance, Modification-agreements-and-stipulations
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

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

Temporary Maintenance Awards and Marital Residence Carrying Charges: Justice Jackman Brown Weighs In

Posted in Child Support (C.S.S.A.), Maintenance, Temporary (Pendente Lite) Relief
Two decisions last month of Queens County Supreme Court Justice Pam Jackman Brown provide insights on how courts might cope with the overlap of the statutory temporary maintenance formula and the payment of marital residence carrying charges. Yesterdays blog reported upon the Second Department’s November 21, 2012 agreement in Woodford v. Woodford with the First Department in Khaira v. Khaira… Continue Reading

Temporary Maintenance Awards Cover Marital Residence Carrying Charges, the Second Department Agrees

Posted in Maintenance, Temporary (Pendente Lite) Relief
The statutory temporary maintenance formula is intended to include the portion of marital residence carrying costs attributable to the nonmonied spouse. So concluded the Appellate Division, Second Department in its November 21, 2012 decision in Woodford v. Woodford. Accordingly, the appellate court vacated so much of Suffolk County Supreme Court Justice James F. Quinn’s July 15, 2011… 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

Divorce Stipulations That Change Court Standards Must Be Precise

Posted in Agreements and Stipulations, Child Support (C.S.S.A.), Maintenance, Modification-agreements-and-stipulations
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

When Divorcing Parents Live Off Their Own Parents

Posted in Child Support (C.S.S.A.), Maintenance, Temporary (Pendente Lite) Relief
What are the support rights and obligations of a couple who have habitually lived often the generosity of their parents? That was the question Monroe County Suprme Court Justice Richard A. Dollinger answered in his July 23, 2012 decision in G.R.P. v. L.B.P. when determining temporary support. The divorcing couple have been married for 20 years… Continue Reading

Prenuptial Agreement Which Bars Spousal Support and Counsel Fees Does Not Bar Interim Support and Fees

Posted in Agreements and Stipulations, Counsel Fees, Maintenance, Temporary (Pendente Lite) Relief
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

Did Judge Overrule the Appellate Division to Hold Ex-Husband May Not Be Required to Provide Health Insurance Beyond Period He Is Required to Pay Support to Ex-Wife?

Posted in Insurance, Maintenance
The rule of law discussed by Monroe County Supreme Court Justice Richard A. Dollinger in Lomaglio v. Lomaglio is undoubtedly correct. An ex-husband may not be required to provide health insurance beyond the period he is required to pay his ex-wife maintenance. The question is was he allowed to correctly apply the law? With allusions to Gilbert and Sullivan’s… Continue Reading

Signing a Prenuptial Agreement Against the Advice of Counsel Bars Subsequent Attack

Posted in Agreements and Stipulations, Maintenance
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

Appellate Decision Clarifies Temporary Maintenance Calculations; Temporary Child Support Awards Must Be Next

Posted in Child Support (C.S.S.A.), Maintenance, Temporary (Pendente Lite) Relief
In the first appellate decision to apply the October 12, 2010 temporary maintenance amendment to the Domestic Relations Law, it was held that the recipient’s share of marital residence carrying charges is within the temporary maintenance award, itself. It was improper to have the payor spouse pay carrying costs directly in exhange for a credit against income… Continue Reading

The Taxability of Spousal Maintenance Payments: a Subject of Inconsistent Court Decisions

Posted in Maintenance, Tax Matters, Temporary (Pendente Lite) Relief
The Appellate Division, Second Department, has again told J.H.O. Stanley Gartenstein that it was improper for him to award nontaxable spousal maintenance. In Siskind v. Siskind, in addition to awarding the wife $65,000 per year in nontaxable maintenance until the wife reached her 65th birthday, J.H.O. Gartenstein equitably distributed the parties’ assets, awarded child support and… Continue Reading

Spousal Maintenance Statute Difficulties Noted by New York’s Law Revision Commission

Posted in Maintenance, Temporary (Pendente Lite) Relief
On October 25, 2011 the New York State Law Revision Commission held a round-table discussion to review New York’s spousal support, i.e. “maintenance” statute, Domestic Relations Law §236(B)(5-a, 6). The discussion precedes a final report which that Commission is required to render under a mandate imposed by the Legislature when new laws concerning temporary maintenance, interim counsel fees and… Continue Reading

When Mortgaging the Marital Residence Is Necessary to Pay Temporary Support

Posted in Counsel Fees, Maintenance, Temporary (Pendente Lite) Relief
The 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… Continue Reading